MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           29 January 2002                   
	DOCKET NUMBER:   AR2001060323

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Karen A. Heinz		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 the narrative reason for his discharge be changed.

APPLICANT STATES:  That the court dismissed all charges against him.  It is unjust that he was separated because someone disliked him.  He provides a certificate of completion dated 12 August 2000 for completing Anger Management Training and a Motion to Dismiss dated 22 September 2000 as supporting evidence.

COUNSEL CONTENDS:  Counsel makes no additional statement.

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

He enlisted in the Regular Army on 8 January 1998.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 19K (Armor Crewman).  

The court-martial charges and the discharge proceedings packet are not available.

On 17 July 2000, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with a discharge under other than honorable conditions.  He had completed 2 years, 5 months, and 13 days of creditable active service and had 7 days of lost time.

On 22 September 2000, the County Court of Bell County, TX dismissed unspecified charges against the applicant.  The Motion to Dismiss notes that although all of the elements of the offense were present and the State was ready to proceed to trial, the Motion to Dismiss was made pursuant to a plea agreement with applicant because restitution was made by the applicant and because the complaining witness requested that he not be prosecuted for the offense.

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.  A discharge under other than honorable conditions is normally considered appropriate.

On 14 November 2001, the Army Discharge Review Board (ADRB) denied the applicant’s request to upgrade his discharge.
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 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 and, in the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.

2.  The Board cannot determine if the charges that were dismissed by the civil court on 22 September 2000 were the same as the charges for which the applicant received his discharge in lieu of court-martial.  Nevertheless, when the applicant requested his administrative discharge in lieu of trial by court-martial he included an admission of guilt.  The Board also notes that the State was ready to proceed to trial on his civilian charges and only dismissed the charges pursuant to a plea agreement with the applicant.  

3.  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

__aao___  __mhm___  __kah___  DENY APPLICATION

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

INDEX

CASE ID	AR2001060323	
SUFFIX		
RECON		
DATE BOARDED	20020129	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	20000717	
DISCHARGE AUTHORITY	AR 635-200 	
DISCHARGE REASON	A70.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.