MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           27 June 2002
	DOCKET NUMBER:   AR2002067575

	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. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Ms. Kathleen A. Newman		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:  That his discharge under other than honorable conditions (UOTHC) be upgraded to honorable.

APPLICANT STATES:  The applicant makes no additional statement but in his Army Discharge Review Board (ADRB) application he stated that things were going fine until his unit deployed to Bosnia for six months.  The length of deployment was too long for his wife.  When he returned from deployment, she told him she was not happy with him after 17 years of marriage.  He found out she was involved with another soldier from Fort Carson, CO and he made a few threats, which he regrets.  He was ordered to stay away from her and his family for two weeks.  He found out his wife was going out of town with her new friend and left his 13-year old son home alone so he disobeyed that order.  

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

He was born on 1 April 1964.  He enlisted in the Regular Army on 2 January 1996.  He completed basic training and advanced individual training and was awarded military occupational specialty 19D (Cavalry Scout).  

Permanent Order 324-003, Headquarters, 2d Squadron, 3d Armored Cavalry Regiment dated 19 November 1996 awarded the applicant the Army Achievement Medal (AAM).

The applicant was honorably discharged on 7 January 1998 for the purpose of immediately reenlisting on 8 January 1998.

Permanent Orders 314-01, Headquarters, 3d Armored Cavalry Regiment dated 10 November 1998 awarded the applicant the AAM.  Permanent Orders 345-3, Detachment B, 4th Personnel Services Battalion, Fort Carson, CO dated            11 December 1998 awarded him the Army Good Conduct Medal.  Permanent Orders 227-048, Headquarters, 2d Squadron, 3d Armored Cavalry Regiment dated 14 August 2000 awarded him the AAM.

On 9 November 2000, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for assault (striking his wife), communicating a threat (to his wife), and failure to obey an order (violating the commander’s order not to contact his wife).

On 14 November 2000, the applicant underwent a mental status evaluation.  He was found to have the mental capacity to understand and participate in proceedings and to be mentally responsible.  He was diagnosed with adjustment disorder with disturbance of emotions and conduct (partner-relational problem) and personality disorder.

On 14 November 2000, court-martial charges were preferred against the applicant charging him with three specifications of failing to obey a lawful command to have no contact with his wife or contact with his wife through a third party, one specification of being disrespectful in language towards a noncommissioned officer, one specification of communicating a threat to two noncommissioned officers and a commissioned officer, and one specification of breaking restriction.

There is evidence of record to show the applicant’s commander recommended pre-trial confinement (but none to show it was implemented).  His commander stated, “…He has threatened to kill his wife in the past.  He has also admitted to assaulting her.  The fact that Mrs. ___ put a restraining order upon SPC ___     13 November 2000 exacerbates his disposition even further.  If SPC ___ is not confined, it is likely that he would attempt to contact and just as likely that he would attempt to harm his wife based on his threats to her.…His threats to commit further misconduct should not be taken lightly…”

On 17 November 2000, after consulting with legal counsel, the applicant voluntarily requested a 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 applicant was advised of the effects of a discharge UOTHC and that he might be deprived of many or all Army and Veterans Administration benefits.  He elected not to submit a statement in his own behalf.

On 22 November 2000, the appropriate authority approved the request and directed the applicant receive a discharge UOTHC.

On 4 December 2000, the applicant was discharged with a discharge UOTHC, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, discharge in lieu of trial by court-martial.  He had completed 4 years, 10 months, and 29 days of creditable active service and had 4 days of lost time.  His Certificate of Release or Discharge from Active Duty, DD Form 214, item 13 does not show he was awarded the Army Good Conduct Medal or any AAM.

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 UOTHC is normally considered appropriate.

On 29 May 2002, the 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.

2.  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.  There is no indication that the request was made under coercion or duress.  Considering the seriousness of the offenses for which the applicant was charged, the type of discharge given was and still is appropriate.

3.  There is an administrative error on the applicant’s DD Form 214 as neither his AAMs nor his Army Good Conduct Medal is entered in item 13.

4.  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.

NOTE:  The Army Review Boards Agency Support Division will be directed to administratively correct the applicant’s DD Form 214 by amending it to show he was awarded the Army Good Conduct Medal and three awards of the Army Achievement Medal.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

_ _INW_ _  __KAN__  __RTD__  DENY APPLICATION

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

INDEX

CASE ID	AR2002067575	
SUFFIX		
RECON		
DATE BOARDED	2002/06/27	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	2000/12/04	
DISCHARGE AUTHORITY	AR 635-200, ch 10  	
DISCHARGE REASON	A70.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.