MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:.

	BOARD DATE:  13 May 1999
	DOCKET NUMBER:   AR1999023469

	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. Loren G. Harrell		Director	
	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor		Chairperson	
	Mr. Samuel Calderon		Member	
	Kenneth L.Wright		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 an honorable discharge. 

APPLICANT STATES:  In effect, he feel that he was coerced into signing a UOTHC discharge after being offered a general discharge.  He was informed that he would receive a court-martial, if he did not sign the UOTHC discharge.  Further, he was not afforded adequate legal counsel.  Therefore, he should be given a second chance.

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

On 17 August 1994, the applicant enlisted in the Regular Army for a period of 4 years and training in military occupational specialty 11B (Infantryman).  He completed basic and advanced individual training at Fort Benning, Georgia and was reassigned to the 75th Ranger Battalion, Fort Benning, Georgia.  The highest grade he achieved was pay grade E-2.

A DA Form 4187 (Personnel Action), dated 15 September 1995, shows that nonjudicial punishment (NJP) was imposed against the applicant under the provisions of a Field Grade Article 15, Uniform Code of Military Justice.  The offense is not stated; however, his punishment included reduction from pay grade E-2 to pay grade E-1. 

The applicant's record is void of facts and circumstances concerning the discharge process.  However, a prehearing review conducted by the Army Discharge Review Boards shows that on 13 March 1996, he was charged with falsely making the signature of another service member; wrongful appropriation of a Ford Ranger Truck; stealing checks totaling $48.00; and two specifications of intent to defraud.  All of the offenses were committed against another service member.  

Additionally, the prehearing review indicates that an undated document showed that the applicant consulted with legal counsel, requested discharge under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court-martial, and he did not submit a statement in his own behalf.  On 29 March 1996, the separation authority approved separation with a UOTHC discharge.

On 5 April 1996, the applicant was separated under the provisions of chapter 10, Army Regulation 635-200, discharge, in lieu of trial by court-martial.  He completed 1 year, 7 months, and 19 days of active military service and he had no recorded lost time. 

The record indicates the Army Discharge Review Board denied the applicant an upgrade of his discharge on 8 April 1997.

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 was authorized, a UOTHC discharge was then considered appropriate.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), 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 evidence of record shows the applicant was discharged under the provisions of Chapter 10, AR 635-200, for the good of the service in lieu of trial by court-martial.  Although, part of the record is missing, in connection with such a discharge, he would have been charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  Procedurally, he would have been required to consult with defense counsel.  He would have been informed that he could receive a UOTHC discharge and the ramifications of receiving such a discharge.  He would have been required to authenticate a written document stating that he understood the effects of receiving such a discharge.  Only then would he have been afforded the opportunity to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt to the stipulated offenses under the UCMJ.  The Board has presumed regularity and he has provided no information that would indicate the contrary. 

3.  The applicant voluntarily requested separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial.  Under such circumstances the approval authority determines the character of service.  The applicant would have been required to sign the UOTHC discharge certificate or face a trial by court-martial. 

4.  The characterization of service for this type of discharge is normally under other than honorable conditions and the applicant was aware of this prior to requesting discharge.

5.  Finally, the Board considered the applicant’s entire record of service for the period under review and was convinced that the reason for discharge and the characterization of service were both proper and equitable.

6.  Therefore, the type of discharge directed and the reason for discharge was appropriate considering the facts of the case.

7.  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____  SC_____  KLW_____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999023469	
SUFFIX		
RECON		
DATE BOARDED	19990513	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	199960405	
DISCHARGE AUTHORITY	AR635-200 	
DISCHARGE REASON	In lieu of trial by court-martial	
BOARD DECISION	(NC)	
REVIEW AUTHORITY		
ISSUES         1.	He was coerced into signing a UOTHC discharge after being offered a GD.  He was not afforded adequate legal counsel.	
2.		
3.		
4.		
5.		
6.