MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           8 November 2001
	DOCKET NUMBER:   AR2001060446

	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	
	Ms. Lisa O. Guion		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Ms. Karen Y. Fletcher		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 (UOTHC) discharge be upgraded.

APPLICANT STATES:  In effect, that his discharge be upgraded due to the fact that he has not been in any trouble since his discharge from active duty, he is more mature, and he is a successful businessman who attends church.  He further states that he was charged with selling hash and without evidence to prove it, he was chaptered out of the Army.  

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

On 20 June 1986, he initially enlisted in United States Army Reserve (USAR) for 8 years.  He served for 1 year, 9 months and 6 days in the USAR until 30 May 1988.  On 31 May 1988 he enlisted into the Regular Army for 4 years.  

The applicant’s service record documents no acts of valor, significant achievement, or service warranting special recognition during his active duty tenure.  He attained the rank of private first class/E-3 (PFC/E-3) and served in military occupational specialty (MOS) 63B (Light-wheel Vehicle Mechanic).  

A court-martial charge was preferred against the applicant for a violation of Article 112(a) of the Uniform Code of Military Justice (UCMJ), for the wrongful use or possession of a controlled substance.

On 9 August 1989, 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 lesser 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 28 August 1989, the separation authority approved the applicant’s request for discharge and directed that he be reduced to private/E-1 (PVT/E-1) and receive an under other than honorable conditions discharge.  Accordingly, on 
18 October 1989, 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, 4 months, 18 days of his current enlistment and a total of 1 year, 6 months, and 23 days of active military service.  

On 1 June 1994, 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.

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, and advisory opinion(s), it is concluded:

1.  The Board notes and congratulates the applicant’s post service conduct and achievements.  However, these factors alone do not provide a sufficient basis for granting the requested relief.

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

__FNE __  __BJE__  __KYF __  DENY APPLICATION

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

INDEX

CASE ID	AR2001060446	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/11/08	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.0000	
2.		
3.		
4.		
5.		
6.