MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           28 February 2002                   
	DOCKET NUMBER:   AR2001064583

	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	
	Mr. G. E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr. 		Chairperson	
	Ms. Celia L. Adolphi		Member	
	Mr. John T. Meixell		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 characterization of service be upgraded to honorable.

APPLICANT STATES:  In effect, that there were unusual circumstances that were beyond his control which caused him to make a mistake in judgment.  He asks that the Board consider his otherwise good service and the fact that he repaid his indebtedness prior to his discharge to afford him an upgrade.  In support of his application, the applicant submits a list and copies of money orders used in his reimbursement to the Government of $7000.

EVIDENCE OF RECORD:  The applicant's complete records are not available however the applicant has provided copies of documents from his military records that show:

The applicant enlisted for four years and entered active duty on 1 December 1993.  He completed basic combat training and advanced individual training with award of the military occupational specialty 62J20 (General Construction Equipment Operator).  He reenlisted on 8 July 1997, again for four years, and advanced to the rank of sergeant (E-5).  

On 16 May 2000, court-martial charges were preferred against the applicant for violation of the Uniform Code of Military Justice, Article 92 (violating or failure to obey a lawful general order or regulation), Article 107 (signing a false record or other official document), Article 121 (wrongful appropriation of property of a value more than $100) and Article 134 (the specification appears to be willfully and unlawfully altering a public document).  

While the charge sheet is not available, the record indicates that the charges arose because of the applicant’s failure to properly notify finance of his divorce.  This failure resulted in the applicant fraudulently continuing to receive basic housing allowance beyond the appropriate cut off date.  When he did notify the servicing finance unit, he submitted an altered divorce decree. 

After consulting with military counsel, the applicant submitted a request for a discharge in lieu of court-martial under the provisions of Army Regulation (AR) 635-200, chapter 10, on 9 June 2000.

The applicant’s chain of command recommended approval of his request with a characterization of service as under other than honorable conditions.  They noted that prior to this incident the applicant’s conduct was considered exemplary and that he had repaid the Government.

The discharge authority accepted the recommendations and the applicant was discharged 22 June 2000, in accordance with AR 635-200, chapter 10 with a characterization of service of under other than honorable conditions.

The applicant applied to the Army Discharge Review Board, citing basically the same arguments as are offered here.  Any change of characterization or reason for discharge was denied by unanimous decision.  

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 is authorized, a discharge under other than honorable conditions is normally considered appropriate.

The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Articles 92, 107, 121 and 134 under similar specifications.

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.  The applicant’s discharge was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

2.  The applicant's request for a chapter 10 discharge, after consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.  His service is appropriately characterized by the offenses that led to the discharge, which outweigh his otherwise honorable service. 

3.  The Board rejects the applicant’s contentions that his situation was unique and mitigated his knowingly committing the offenses that led to his discharge.

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__  __CLA___  __JTM __  DENY APPLICATION

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

INDEX

CASE ID	AR2001064583	
SUFFIX		
RECON		
DATE BOARDED		
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION		
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.