MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  19 March 2002
	DOCKET NUMBER:  AR2001064303

	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. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Ms. Shirley Powell		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. Elzey J. Arledge		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 a general discharge.

APPLICANT STATES:  That court-martial charges were brought against him for fraternization, that he accepted a chapter 10 discharge from the military on the advice of his legal counsel, and has regretted his decision.  He has graduated from the New World College with a Business Major, taught in the public school system, and taught special programs for problem teenagers.  Since his discharge, he has tried to make the right choices and improve himself at every opportunity and feels that his discharge should be upgraded.  In support of his application, he submits a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), two character reference letters, and a course completion certificate from the New World College.

EVIDENCE OF RECORD:  The applicant's military records show he enlisted on 23 June 1975, as a military policeman.  

The facts and circumstances pertaining to the applicant’s discharge are not present in the available records.  However, his Army Discharge Review Board (ADRB) Case Report and Directive shows that he was advised by counsel on 2 September 1982, requested discharge for the good of the service in lieu of trial by court-martial, and declined to submit a statement on his behalf.  His ADRB report indicated that he was facing a court-martial based on the following charges; attempting to place his arm around and kiss a female trainee; attempting to engage in social conversation and date a trainee; dereliction of duty; and communicate indecent language to a female trainee.  On 21 September 1982, the separation authority approved the applicant’s request with the issuance of an under other than honorable conditions discharge.  On 1 October 1982, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He was furnished an Under Other Than Honorable Discharge Certificate.  He had a total of 7 years, 3 months, and 10 days of creditable service.

The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 2 October 1983.  The ADRB determined that his discharge was proper and equitable and denied his request on 4 June 1984.

The applicant provided two character reference letters, which state that he possessed strong character, performed his duties in an outstanding manner, was a devoted family man, involved in various community activities, and proved himself to be an exemplary NCO on and off duty.  

Army Regulation 635-200 sets forth the basic authority for 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 at any time after the charges
have been preferred, submit a request for discharge for the good of the service
in lieu of trial by court-martial.  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 Board notes the applicant’s contention that court-martial charges were brought against him for fraternization and that he accepted a discharge based on the advice of legal counsel.  The Board also notes that the applicant was afforded the opportunity to accept a court-martial, which would have asserted his innocence, but accepted to be discharged on the advice of his counsel.

2.  The Board also notes the applicant’s character references and his certificate, which shows that he completed his course of study in Business Management and Computers Program; however, this evidence is not sufficient enough to warrant an upgrade of his discharge.

3.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.  

4.  The type of separation directed and the reasons for that separation appear to be appropriate considering all of the available facts of the case.

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 this 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

__sp__  ___sk_____  ___ea____  DENY APPLICATION

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

INDEX

CASE ID	AR2001064303	
SUFFIX		
RECON		
DATE BOARDED	20020319	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19821001	
DISCHARGE AUTHORITY	AR .635-200  C 10	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189		
2.		
3.		
4.		
5.		
6.