PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            16 April 2002
	DOCKET NUMBER:   AR2002066731

	I certify that hereinafter is recorded the true and complete record of the proceedings 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. Irene N. Wheelwright		Chairperson	
	Ms. Melinda M. Darby		Member	
	Mr. John T. Meixell		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his discharge under other than honorable conditions be upgraded to honorable, that his rank be restored, and that his report of separation (DD Form 214) be corrected to reflect awards of the Army Achievement Medal (AAM), the Humanitarian Service Medal (HSM), the Overseas Service Ribbon and his attendance at the Nuclear Biological Chemical (NBC) Course. 

3.  The applicant states, in effect, that he had an excellent career until he was transferred to Germany and encountered a company commander that disliked him.  He goes on to contend that he was charged with an exaggerated charge of possession, use and distribution of marijuana, communicating a threat, refusing a lawful order or something to that effect, and destruction of government property.  None of the charges were ever proven; however, his lawyer convinced him that requesting the chapter 10 discharge was better than going to Leavenworth for 10 years and getting a dishonorable discharge.  He continues by stating that he has been a good citizen since his discharge and is active in his community.  

4.  The applicant’s military records show that he enlisted in the Regular Army on 15 August 1980 for a period of 3 years, training as a military policeman and assignment to Fort Benning, Georgia.  He completed his training and was transferred to Fort Benning on 19 January 1981.  While at Fort Benning, he was transferred on temporary duty to Fort Chaffee, Arkansas, on 26 October 1981 in support of the Cuban Refugee Program for 60 days.  He was advanced to the pay grade of E-4 on 1 December 1981 and remained at Fort Benning until he was transferred to Germany on 26 March 1982.

5.  On 28 May 1982, he completed the NBC Defense Officer/Noncommissioned Officer (NCO) Course.  The duration of the course was from 17 May to 28 May 1982.

6.  The facts and circumstances surrounding his administrative discharge are not present in the available records.  However, his records do contain a duly constituted DD Form 214, which shows that he was discharged under other than honorable conditions on 16 May 1983, 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 2 days of total active service and was not credited with a completed overseas tour.  There is no indication in his records that he was ever awarded the AAM.

7.  His DD Form 214 shows that he was awarded the Army Service Ribbon as well as his marksmanship badges.  It also shows that he attended his advanced individual training as a military policeman.

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

9.  Army Regulation 600-8-25 provides, in pertinent part, that the HSM was awarded for direct support from any location to the Cuban Refugee Resettlement effort during the period of 27 April 1980 to 1 July 1985.

10.  That regulation also provides that the Overseas Service Ribbon is awarded to members of the United States Army for successful completion of overseas tours.

11.  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.  A condition of submitting such a request is that they must admit guilt to the charges preferred against them or a lesser included offense which would also result in a punitive discharge.  They must also indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive.  A discharge under other than honorable conditions is normally considered appropriate.

CONCLUSIONS:

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.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and a felony conviction.  While he may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date.  The Board does not find it appropriate to attempt to establish innocence in his case at this late date, given that his admission of guilt was required in order for him to submit his request. 

3.  The applicable regulation indicates that a HSM was awarded for the Cuban Refugee Resettlement Program and it is reasonable that the applicant was awarded the HSM as he claims, for his participation in that program.  Likewise, his records show that he attended the NBC Course and his records should be corrected to reflect the award of the HSM and attendance at the NBC Course.

4.  However, there is no evidence that he was awarded the AAM or that he was eligible for award of the Overseas Service Ribbon.  Therefore, there is no basis to grant that portion of his request.  

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was awarded the HSM and that he attended the NBC Course for 2 weeks in 1982.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__jm____  ___md __  __inw ___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Irene N. Wheelwright___
		        CHAIRPERSON

INDEX

CASE ID	AR2002066731	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/04/16	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT PARTIAL	
REVIEW AUTHORITY		
ISSUES         1.  121	107.0075/HSM	
2.  23	103.0000/NBC course	
3.		
4.		
5.		
6.