MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           14 February 2002                        
	DOCKET NUMBER:   AR2001064939

	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. Beverly A. Young 		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. John E. Denning		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 a general discharge.

APPLICANT STATES:  In effect, that he would like for the Board and the U.S. Army to forgive him for the incident that happened while he was in the Army from 1986 to 1988.  He states that he served in the Army for ten years and was ready to die for his country.  He further states that he is now disabled from the injuries he received in the Army and receives social security.  He claims that he was young and was not thinking right at the time and would like for his discharge to be upgraded to a general under honorable conditions discharge.  

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

He enlisted in the Army on 18 July 1978 and completed training as a wire systems installer.  He reenlisted twice and completed overseas assignments in Korea and Germany.  He was promoted to the rank of sergeant in June 1983.

On 17 December 1986, the applicant received nonjudicial punishment for permitting a PV2 to drive his privately owned vehicle (POV) without a valid driver’s license.  

The facts and circumstances pertaining to the applicant's discharge are not in his records.  However, his records contain a Case Report and Directive from the Army Discharge Review Board.  This report indicates that charges were preferred against the applicant on 23 March 1988 for dereliction of duty and for committing sodomy with a specialist four.  The report further indicates that the applicant consulted with legal counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  The applicant elected to submit statements in his own behalf; however, his statements were not in his records.  

The applicant received nonjudicial punishment again on 13 April 1988, for driving an uninsured and unregistered POV.

On 16 August 1988, the separation authority approved the discharge with issuance of an UOTHC discharge.  The applicant was discharged on 26 August 1988 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service-in lieu of trial by court-martial.  He completed 10 years, 1 month and 9 years of creditable service.

On 1 February 1991, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

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.

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 is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.

2.  The contentions of the applicant have been noted by the Board; however, the applicant has failed to submit sufficient evidence that would warrant an upgrade of his discharge.  Therefore, the type of discharge directed and the reasons for his separation were appropriate considering all the facts of the case.

3.  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.

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

JNS______  BJE_____  JED_____  DENY APPLICATION

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

INDEX

CASE ID	AR2001064939	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020214	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19880826	
DISCHARGE AUTHORITY	AR635-200,chapter 10	
DISCHARGE REASON	For the Good of the Service-In Lieu of Trial by Court-Martial	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.0000	
2.		
3.		
4.		
5.		
6.