MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            30 October 2001
	DOCKET NUMBER:   AR2001058706

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Ms. Celia L. Adolphi		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Harry B. Oberg		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:  That his discharge under other than honorable conditions be upgraded to honorable.

APPLICANT STATES:  The applicant has offered no argument with his Application for Correction of Military Records (DD Form 149) to support his request.  However, he indicates that he previously submitted a DD Form 293, which is not present in the available records.

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

The applicant enlisted on 6 September 1978 for a period of 4 years and training as a personnel administration specialist.  It appears that he was recycled through three separate basic training companies at Fort Knox, Kentucky before he completed basic training and was transferred to Fort Benjamin Harrison, Indiana for advanced individual training (AIT).  He completed his AIT and was transferred to Germany on 1 March 1979.  He was advanced to the pay grade of E-3 on 1 September 1979.

On 16 July 1980, nonjudicial punishment (NJP) was imposed against the applicant for disobeying a lawful order from a senior noncommissioned officer (NCO).  His punishment consisted of a reduction to the pay grade of E-2 (suspended for 90 days), a forfeiture of pay (suspended for 90 days) and extra duty.

On 23 October 1980, NJP was imposed against him for failure to go to his place of duty.  His punishment consisted of a reduction to the pay grade of E-2 and a forfeiture of pay (both suspended for 60 days) and extra duty.

The applicant was advanced to the pay grade of E-4 on 13 January 1981.

The actual facts and circumstances surrounding the applicant’s administrative separation are not present in the available records.  However, his records do contain a duly constituted report of separation signed by the applicant, which shows that he was discharged under other than honorable conditions on 12 June 1981, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 2 years, 9 months, and 7 days of total active service.

There is no evidence in the available records to show that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations.  

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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 at any time after charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  Such a request is strictly voluntary on the part of the person who has been charged and they must indicate that they have been briefed on the consequences of accepting a discharge under other than honorable conditions and must also indicate that they have not been coerced by anyone to request such a discharge.  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.  In the absence of evidence to the contrary, it must be presumed that the applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by  court-martial, was administratively correct and in conformance with applicable regulations.

2.  Accordingly, it must be presumed that the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  A request for discharge under Army Regulation 635-200, chapter 10, in lieu of trial by court-martial requires a voluntary request on the part of the individual concerned.  Therefore, it appears that he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records.  While he may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date.

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

___cla___  __hbo ___  ___ao___  DENY APPLICATION

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

INDEX

CASE ID	AR2001058706	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/10/30	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1981/06/12	
DISCHARGE AUTHORITY	AR635-200/CH10	
DISCHARGE REASON	GD OF SVC	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  689	144.7000/A70.00	
2.  708	144.7100/A71.00	
3.		
4.		
5.		
6.