MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            31 July 2003
	DOCKET NUMBER:   AR2003086532

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Ms. Gail J. Wire		Chairperson	
	Ms. Karen A. Heinz		Member	
	Mr. Robert Duecaster		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 discharge under other than honorable conditions be upgraded to a more favorable discharge.

APPLICANT STATES:  That he was told that his discharge would be automatically upgraded 6 months after he was discharged.

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

He was born on 5 June 1957 and he enlisted on 20 March 1979, for a period of 4 years, training as an armor crewman and a cash enlistment bonus.  He completed his training at Fort Knox, Kentucky, and was transferred to Germany on 31 July 1979.  He was advanced to the pay grade of E-2 on 20 September 1979.

On 19 June 1980, nonjudicial punishment (NJP) was imposed against him for sleeping on his guard post and for shoplifting from a local department store.  His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of pay and extra duty.

On 12 January 1980, NJP was imposed against the applicant for being disrespectful in language and deportment towards a superior noncommissioned officer (NCO).  His punishment consisted of a reduction to the pay grade of E-2, a forfeiture of pay, extra duty and restriction.

On 26 June 1981, NJP was imposed against him for being incapacitated for the performance of his duties due to his previous indulgence in intoxicating liquor and for being drunk and disorderly.  His punishment consisted of a reduction to the pay grade of E-2, a forfeiture of pay, extra duty and restriction. 

He departed Germany on 26 July 1981 and was transferred to Fort Stewart, Georgia.

On 3 March 1982, charges were preferred against the applicant for two specifications of being disrespectful in language towards a superior NCO and one specification of assaulting an NCO by swinging at him with his fist.

On 25 March 1982, after consulting with counsel, the applicant submitted a request for discharge for the good of the service, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  In his request he indicated that he was making the request of his own free will, without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted that he was guilty of the charges against him or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged that he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge.  He further declined to submit a statement or explanation in his own behalf.

The appropriate authority (a brigadier general) approved his request and directed that he be discharged under other than honorable conditions.

Accordingly, he was discharged under other than honorable conditions on 21 April 1982, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 2 years, 1 month and 2 days of total active service.

In October 1982, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge and contended at that time that he knew he had made a lot of mistakes; however, during the 6 months that had elapsed since his discharge, he had tried to do the best he could.  The ADRB determined that his discharge was both proper and equitable under the circumstances and voted unanimously to deny his request on 29 March 1983.

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 the individual concerned must admit guilt to the charges against them or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and they must 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 and there have never been any provisions for an automatic upgrade of such discharges.

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 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.

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

3.  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 having a felony conviction on his records.  In doing so he admitted guilt to the charges against him.  While he may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date, especially considering his otherwise undistinguished record of service during such a short period of time.

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

__rd ____  ___kh___  ___gw___  DENY APPLICATION

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

INDEX

CASE ID	AR2003086532	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2003/07/31	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1982/04/21	
DISCHARGE AUTHORITY	AR635-200/CH10	
DISCHARGE REASON	GD OF SVC	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  144.7000	689/A70.00	
2.		
3.		
4.		
5.		
6.