MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           15 March 2000                   
	DOCKET NUMBER:   AR1999030534

	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.

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Margaret K. Patterson		Member	
	Mr. Van B. Cunningham		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 be upgraded.

APPLICANT STATES:  That he was punished too harshly for a crime he did not actually commit.  Murderers and rapists get less time.  Besides, the President just got a slap on the wrist for lying under oath just like him.

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

He enlisted in the Regular Army on 24 September 1986.  He was promoted to Sergeant, E-5 on 1 May 1990.  He served in Saudi Arabia during Operation Desert Shield/Storm from 30 September 1990 – 18 March 1991.

On 8 May 1991, the applicant received a letter of reprimand for having sexual intercourse with a woman not his wife. 

On 16 July 1992, court-martial charges were preferred against the applicant charging him with conspiracy to possess and sell stolen property, to wit, an     AK-47; failure to turn over to proper authority abandoned and captured property, to wit, an AK-47; dealing in the sale of certain abandoned and captured property, to wit, an AK 47; and wrongfully subscribing under lawful oath a false statement.

On 5 November 1992, 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 under other than honorable conditions 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 16 November 1992, the applicant completed a mental status evaluation.  He was found to have the mental capacity to understand and participate in proceedings and to be mentally responsible.

The applicant completed a separation physical examination and was found qualified for separation.

On 23 November 1992, the appropriate authority approved the request and directed the applicant receive a discharge UOTHC.

On 13 January 1993, the applicant was discharged with a discharge under other than honorable conditions, 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 6 years, 3 months and 20 days of creditable active service and had no lost time. 

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 under other than honorable conditions is normally considered appropriate.

On 11 October 1996, the Army Discharge Review Board denied the applicant’s request for an upgraded 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 the aforementioned 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.

3.  The Board notes that this was an administrative discharge and the applicant did not get “any time.”  Although he states he “did not actually commit a crime” his request for discharge included his admission of guilt.  The Board also notes that he was charged with more than just “lying under oath.”

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.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__rvo___  __mkp___  __vbc___  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999030534	
SUFFIX		
RECON		
DATE BOARDED	20000315	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19930113	
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.