MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           19 July 2001
	DOCKET NUMBER:   AR2001055153

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mr. Joseph A. Adriance 		Analyst	

  The following members, a quorum, were present:

	Mr. Mark D. Manning 		Chairperson	
	Mr. Lestor Echols		Member	
	Ms. Gail J. Wire		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A -  Application for correction of military 
                             records
	Exhibit B -  Military Personnel Records (including
	                  advisory opinion, if any)

APPLICANT REQUESTS:  In effect, that his under other than honorable conditions discharge be upgraded.

APPLICANT STATES:  In effect, that he has been trying to upgrade his discharge for the past 8 years.  He indicates that he had completed 3 years of service honorably prior to his discharge and believes this should entitle him to be given an upgrade to his discharge. 

EVIDENCE OF RECORD:  The applicant's military records show:

On 18 February 1976, he initially enlisted in the Regular Army and entered active duty.  He served for 2 years, 7 months, and 9 days until being honorably separated on 1 October 1978, for the purpose of immediate reenlistment.

On 2 October 1978, while assigned to the Regional Personnel Center (RPC), Frankfurt, Germany, the applicant reenlisted for 3 years.  At the time, he held the rank of specialist four/E-4 (SP4/E-4) and was serving in military occupational specialty (MOS) 72E (Telecommunications Specialist).  

The applicant’s Personnel Qualification Record (DA Form 2-1) and Military Personnel Records Jacket (MPRJ) document no acts of valor, significant achievement, or service warranting special recognition during his active duty tenure and confirm that he earned no individual awards or decorations during his service.  

The applicant’s record does reveal a disciplinary history that includes his having accrued 5 days of time lost due to being absent without leave (AWOL) and his having accepted nonjudicial punishment (NJP), under the provisions of 
Article 15 of the Uniform Code of Miltiary Justice (UCMJ), for five specifications of being absent from his place of duty during his first enlistment. 

On 29 October 1979, a court-martial charge was preferred against the applicant for a violation of Article 128 of the UCMJ based on his having committed an assault on another soldier by shooting him in the face with a means likely to do bodily harm, to wit:  a gas pistol.  

On 30 October 1979, the applicant consulted legal counsel and after being advised of the basis for the contemplated trial by court-martial; the maximum permissible punishment authorized under the UCMJ; the possible effects of a discharge under other than honorable conditions; and the procedures and rights available to him, he voluntarily requested discharge for the good of the service, in lieu of trial by court-martial.  In his written request, the applicant acknowledged that he was guilty of the charge against him or of a lessor included offense which authorized the imposition of a bad conduct or dishonorable discharge and that he had no desire to be rehabilitated or to perform further military service.  
On 9 November 1979, the separation authority approved the applicant’s request for discharge and directed that he receive an under other than honorable conditions discharge.  Accordingly, on 10 December 1979, he was discharged, under the provisions of chapter 10, Army Regulation 635-200, for the good of the service-in lieu of trial by court-martial, after completing 1 year, 2 months, 9 days of his current enlistment and a total of 3 years, 9 months, and 23 days of active military service.  

On 5 June 1981, the applicant’s request for an upgrade to his discharge was denied by the Army Discharge Review Board (ADRB) based on their finding that his discharge was both proper and equitable.  Even after considering his prior period of honorable service, the ADRB found that the characterization of his service was warranted based on the seriousness of the offense for which he was charged. 

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The Board notes the applicant’s contention that his honorable service on a prior enlistment should warrant an upgrade to his discharge. 

2.  The evidence of record shows the applicant, after consulting with defense counsel, voluntarily requested an administrative separation from the Army, under the provisions of chapter 10, Army Regulation 635-200, for the good of the service-in lieu of trial by court-martial, and in doing so, he admitted guilt to the stipulated offense under the UCMJ.

3.  The Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the Board notes that the characterization of service for this type of discharge is normally under other than honorable conditions and that the applicant was aware of that prior to requesting discharge.  

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__MDM__  __ LE  __  __GJW__  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2001055153	
SUFFIX		
RECON		
DATE BOARDED	2001/07/19	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1979/12/10	
DISCHARGE AUTHORITY	AR 635-200 C10	
DISCHARGE REASON	In Lieu of CM	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000	
2.		
3.		
4.		
5.		
6.