MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            14 August 2003
	DOCKET NUMBER:   AR2003088026

	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. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. James E. Anderholm		Member	
	Ms. Linda M. Barker		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 be upgraded to an honorable discharge.

APPLICANT STATES:  In effect, that the type of discharge that he received was too harsh considering the nature of his offenses.

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

On 31 May 1974, he enlisted in the Army for 3 years in the pay grade of E-1.  He successfully completed his training as a personnel management specialist.  He remained on active duty through a series of continuous reenlistments.

Nonjudicial punishment (NJP) was imposed against the applicant on 16 July 1975, for wrongfully, with intent to deceive, changing the birthday on his military identification card.  His punishment consisted of a reduction in pay grade, a forfeiture of pay and extra duty.

On 8 November 1976, NJP was imposed against him for failure to have his privately owned vehicle registered on post.  His punishment consisted of a forfeiture of pay and extra duty.

On 8 August 1977, NJP was imposed against the applicant for being absent from his unit for 2 days.  His punishment consisted of a forfeiture of pay.

He had NJP imposed against him again on 11 May 1979, for being absent from his appointed place of duty.  His punishment consisted of a reduction in pay grade, a forfeiture of pay, restriction and extra duty.

Although it is not a part of the available record, the applicant was notified that charges were pending against him for sodomy, indecent acts and indecent liberties with his stepdaughter.  The accusations were under investigation by the Criminal Investigation Division, when on 6 March 1985, after consulting with counsel, the applicant 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 2 April 1985.  Accordingly, on 11 April 1985, 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 years, 10 months and 12 days of total active service.

On 14 May 1986, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

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.

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 therefore were appropriate considering all the facts of the case.

3.  The applicant's request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.  Although he may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date and considering his acts of misconduct it does not appear that his discharge under other than honorable conditions 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

__ja ____  ___rvo __  __ld ____  DENY APPLICATION

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

INDEX

CASE ID	AR2003088026	
SUFFIX		
RECON		
DATE BOARDED	2003/08/14	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1985/04/11	
DISCHARGE AUTHORITY	AR 635-200, CH 10	
DISCHARGE REASON	689	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  706	144.7017/SERIOUS OFFENSE	
2.		
3.		
4.		
5.		
6.