MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:            27 August 2002                  
	DOCKET NUMBER:   AR2002073935

	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	
	Mr. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Arthur A. Omartian 		Member	
	Mr. Thomas Lanyl		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: That his military lawyer told him that this kind of discharge was the best option.  He didn’t want to take up his time.  He felt pressure all the time.  They told him if he didn’t take this [discharge] he might go to prison.  This all happened because of a fist-fight, which he is sorry that it happened.

EVIDENCE OF RECORD: The applicant's military records were lost or destroyed and the information herein was obtained from reconstructed personnel records.

During the period 22 March to 9 April 1985, he was in the Army Reserve Delayed Enlistment Program.

On 10 April 1985, he enlisted in the Regular Army.  He completed his required training and was awarded military occupational specialty 95B (Military Policeman).

On 24 July 1986, he was administered nonjudicial punishment under Article 15, Uniform Code of Military Justice for the theft of another soldier’s personal property, for disobeying a lawful order on 13 July 1986 and for disorderly conduct on 13 July 1986.  His punishment included a forfeiture of $149 pay, restriction and extra duty.  His appeal was denied.

On 29 September 1987, the applicant, after consulting with legal counsel, voluntarily submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He acknowledged that he could receive a bad conduct or dishonorable discharge; that he was guilty of the charges against him (Article 90 – Assault upon a superior commissioned officer; Article 92 – Failure to obey a lawful regulation; and Article 128 – Assault); that he had consulted with legal counsel; and that he had no desire to perform further military service.

A physical examination and mental status evaluation cleared him for separation.

On 8 October 1987, the appropriate separation authority approved his request, directed his reduction to pay grade E-1 and that a UOTHC discharge be issued.

On 27 October 1987, the applicant was discharged, in pay grade E-1, with a discharge UOTHC, under the above-cited regulation.  His separation document indicates he had 2 years, 6 months and 18 days of creditable service.

Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (Discharge for the Good of the Service), then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 10 provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could at any time after the charges had been preferred, submit a request for discharge for the good 
of the service in lieu of trial by court-martial.  At the time of the applicant’s separation, the regulation provided for the issuance of an Undesirable Discharge Certificate.

Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 3-7 provides that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be inappropriate.

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 chose to request an administrative discharge rather than risk the consequences of a court-martial.  Although he may now feel that he made the wrong choice, he should not be allowed to change his mind at this late date.

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.

3.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

4.  The applicant's contention that he was ill advised by his legal counsel at the time is not sufficiently mitigating to warrant relief. The Board notes that the applicant authenticated a statement that he voluntarily made the request and that it was of his own free will and he had not been subjected to any coercion whatsoever by any person.  Further, he indicated that he had been advised of the implications that are attached to this type discharge.  He acknowledged that he understood the charges and was guilty of them.

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

_INW____  _AAO____  _TL____ DENY APPLICATION

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

INDEX

CASE ID	AR2002073935	
SUFFIX		
RECON		
DATE BOARDED	20020827	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144	
2.		
3.		
4.		
5.		
6.