MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:    

	BOARD DATE:             24 February 2000
	DOCKET NUMBER:    AR1999029811

	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.

	Ms. Antoinette E. Farley		Analyst	

  The following members, a quorum, were present:

	Ms. Celia L. Adolphi		Chairperson	
	Mr. James P. Huber		Member	
	Ms. Margaret V. Thompson 		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 under other than honorable conditions (UOTHC) discharge, be upgraded to a general discharge, under honorable conditions.

APPLICANT STATES:  That his UOTHC discharge was inequitable because it was based on one isolated incident in 17 months of service with no other adverse actions.  He further states that he has had no problems previous to his service time and none for 22 years after discharge.  He submits a letter from the Department of the Army, a personal letter to the agency, a copy of his DD Form 214 (Report of Separation from Active Duty), a copy of his college diploma, his DD Form 293 (Application to the Army Discharge Review Board (ADRB)), letters of character reference, and a certificate of no penal record in Puerto Rico. 

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

He entered the Delayed Entry Program of the Army Reserve on 19 August 1975.  On 16 September 1975, he enlisted in the Regular Army for 3 years.  He completed his basic combat training at Fort Jackson, South Carolina, in the pay grade E-2.  He was further assigned to Fort Gordon, Georgia, on 12 November 1975, for his advanced individual training (AIT).

On 19 March 1976, after completing AIT in military occupational specialty (MOS) 72E20 (Telecommunication Center Specialist), he was assigned to Fort Campbell, Kentucky, for duty in his MOS.  On 1 December 1976, he was advanced to pay grade E-3, which was the highest pay grade he achieved.  

Court-martial charges were most likely preferred in early 1977, but they are not a matter of record.  On 26 January 1977, the applicant consulted with legal counsel, requested discharge under the provisions of Chapter 10, Army Regulation AR 635-200, in lieu of trial by court martial, and did not submit a statement in his own behalf.  In his request he stated that if he went to trial that he could receive a punitive discharge.  Further, he admitted guilt to the charges for which he was facing trial by court-martial.  He also waived his rights to a separation physical with no further indication in his record of any outstanding medical or mental conditions. His chain of command recommended a GD.  On 11 February 1977, the separation authority approved his separation with UOTHC discharge.

On 16 February 1977, he was discharged with a UOTHC for the good of the service, in lieu of trial by court-martial, under the provision of chapter 10, Army Regulation 635-200.  He had completed 1 year, 4 months and 27 days of creditable service and had no lost time.

On 3 July 1999, the applicant petitioned the ADRB seeking a upgrade of his discharge.  On 29 September 1999, that board referred his request to the Army Board of Correction for Military Records in view of the expiration of that board’s 15–year statute of limitations for processing discharge appeals. 

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.  Army policy states that although an honorable or general discharge is authorized, a UOTHC discharge 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.  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, in this case, has failed to submit evidence that would satisfy the aforementioned requirement.

2.  While the specific violation of the UCMJ is not shown in the applicant’s records, other evidence of record shows the applicant was charged with the commission of an offense punishable under the UCMJ for which, if convicted, he could have been sentenced to a punitive discharge.  

3.  The Board noted that, after consulting with defense counsel, the applicant voluntarily, and in writing, requested separation from the Army in lieu of trial by court-martial.  In doing so, the applicant admitted guilt to the stipulated offenses under the UCMJ. 

4.  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.

5.  In the absence of evidence to the contrary, the Board presumes that the discharge proceedings were conducted in accordance law and regulations.  The applicant has provided no probative evidence that the one or more court-martial charge (s) for which he was facing trial was/were not serious.  Therefore, the Board must also presume that the characterization of service directed in this case was proper.  

6.  In view of the foregoing, there is no basis to grant 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

__CLA_ _  __JPH___  ___MVT    DENY APPLICATION

				Karl F. Schneider
				Director, Army Review Boards Agency

INDEX

CASE ID	AR1999029811	
SUFFIX		
RECON		
DATE BOARDED	20000224	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19770916	
DISCHARGE AUTHORITY	AR 635-200 CH10	
DISCHARGE REASON	A71.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	71.00	
2.	93.01	
3.	9309	
4.	94.07	
5.		
6.