MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            24 January 2002
	DOCKET NUMBER:   AR2001060776

	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. Deyon D. Battle		Analyst	

The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Richard T. Dunbar		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, reconsideration of his request that his discharge under other than honorable conditions be upgraded to an honorable or a general discharge.

APPLICANT STATES:  That he was told that he would be eligible for an upgrade of his discharge 10 years after his discharge.

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

On 20 May 1980, he enlisted in the Army for 3 years in the pay grade of E-1.  He successfully completed his training as a food service specialist.

The applicant was in Germany on 15 January 1981, when charges were preferred against him for committing an assault upon an individual on 20 October 1980, by grabbing him and throwing him to the ground with a force likely to produce grievous bodily harm and attempting to steal the individual’s wallet and for unlawfully striking an individual in the face with a closed fist and stealing his wallet on 26 October 1980.

He acknowledged receipt of the notification and, after consulting with counsel, he waived his right to submit a statement in his own behalf and he submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of trial by court-martial.

The appropriate authority approved the request for discharge on 24 March 1981. Accordingly, on 2 April 1981, the applicant was discharged under other than honorable conditions, under the provisions of Army Regulation 635-200, 
chapter 10, for the good of the service, in lieu of trial by court-martial.  He had completed 10 months and 13 days of total active service.

On 11 August 1982, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

The applicant submitted an application to this Board requesting an upgrade of his discharge on 4 February 1989.  At that time he contended that he had been falsely accused; that he was harassed and forced to resign; that he was unjustly treated; and that the charges against him were “trumped-up”.  The Board denied his request on 16 May 1990.

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.  There were not then, nor are there now any provisions for an automatic upgrade of such a discharge.

Army Regulation 15-185 sets forth the policy and procedures for the ABCMR.  It provides that, if a request for reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence that was not in the record at the time of the Board’s prior consideration.  This includes but is not limited to any facts or arguments as to why relief should be granted.  The staff of the Board is authorized to determine whether or not such evidence has been submitted.

The regulation provides further guidance for reconsideration requests that are received more than one year after the Board’s original consideration or after the Board has already reconsidered the case.  In such cases, the staff of the Board will review the request to determine if substantial relevant evidence has been submitted that shows fraud, mistake in law, mathematical miscalculation, manifest error, or if there exists substantial relevant new evidence discovered contemporaneously with or within a short time after the Board’s original decision. If the staff finds such evidence, the case will be resubmitted to the Board.  If no such evidence is found, the application will be returned without action.

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 applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.

3.  The Board has noted the applicant’s contentions.  However, his request for a chapter 10 discharge, even after appropriate and proper consultation with counsel, tends to show he wished to avoid the trial by court-martial and the punitive discharge that he might have received.  Considering his acts of misconduct, it does not appear that the type of discharge that he received is too severe.

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

___gp___  __wtm___  __rtd ___  DENY APPLICATION

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

INDEX

CASE ID	AR2001060776	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/01/24	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	02/04/1981	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	689	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  716	144.7300	
2.		
3.		
4.		
5.		
6.