MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            29 March 2000
	DOCKET NUMBER:   AR1999031640

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Robert G. Hinkle		Chairperson	
	Mr. Mark D. Manning		Member	
	Mr. James P. Steuve		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.

APPLICANT STATES:  In effect, that he has waited long enough to have the benefits he earned restored to him.  He further states that he was falsely charged, tried, and convicted without a hearing 4 days prior to his scheduled expiration of term of service (ETS) for reasons of expediency and to save the government time and money.  He also states that he was discharged without pay and allowances as well as no entitlement to benefits and he now needs help for the injuries that he incurred in Vietnam and Germany.  He also states that he now has a family and two children and cannot obtain substantial employment because of his discharge.

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

He enlisted at the age of 23 in Denver, Colorado on 4 June 1980 for a period of 4  years, training as a radio teletype operator, assignment to Europe, and a cash enlistment bonus.  He successfully completed his training and was transferred to Germany on 28 December 1980.

On 7 January 1982, nonjudicial punishment (NJP) was imposed against the applicant for the wrongful possession of marijuana in hashish form.  His punishment consisted of a reduction to the pay grade of E-2 (suspended), a forfeiture of pay, extra duty and restriction.

He was advanced to the pay grade of E-4 on 1 September 1982 and upon completion of his tour in Germany on 21 December 1982, he was transferred to Fort Hood, Texas.

On 12 May 1983, NJP was imposed against him for driving under the influence of alcohol.  His punishment consisted of a reduction to the pay grade of E-3, a forfeiture of pay, and extra duty.

Although the circumstances are not present in the available records, his records do show that he was again reduced in grade to the pay grade of E-1 on 8 May 1984.

The facts and circumstances surrounding the applicant’s administrative discharge are not present in the available records.  However, his records do contained a duly constituted report of separation (DD Form 214) which shows that on 29 May 1984 he 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 served 3 years,11 months and 26 days of total active service.

There is no indication in the available records to show that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

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.  Such a request is strictly voluntary on the part of the person who has been charged and they must indicate that they have been briefed on the consequences of accepting a discharge under other than honorable conditions and must also indicate that they have not been coerced by anyone to request such a discharge.  A discharge under other than honorable conditions is normally considered appropriate and there are no provisions for an automatic upgrade of such a 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 the absence of evidence to the contrary, it must be presumed that 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, it must be presumed that the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  A request for discharge under Army Regulation 635-200, chapter 10, in lieu of trial by court-martial requires a voluntary request on the part of the individual concerned.  Therefore, it appears that 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.  While he may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date.

4.  The applicant’s contentions have been noted by the Board; however, they are not supported by the evidence submitted with his application or the evidence of record.  Accordingly, they are not sufficiently mitigating when compared to his extensive absences and his otherwise undistinguished record of service during a relatively short period.

5.  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.

6.  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

__mdm__  ___jps___  __rgh ___  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999031640	
SUFFIX		
RECON		
DATE BOARDED	2000/03/29	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1984/05/29	
DISCHARGE AUTHORITY	AR635-200/CH10	
DISCHARGE REASON	689	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  689 	144.7000/A70.00/GOOD OF THE SVC	
2.		
3.		
4.		
5.		
6.