MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           18 March 2003                   
	DOCKET NUMBER:   AR2002075413

	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. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Margaret V. Thompson		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 undesirable discharge (UD) be upgraded to a fully honorable discharge.  

APPLICANT STATES:  That at the time of his separation, he was led to believe that he would receive a general, under honorable conditions, discharge and that he would be able to reenlist and get a fresh start.  He contends that, in 1973, an individual took some money from him and that he used a weapon to defend himself.  He adds that he reported the incident to the Charge-of-Quarters when he returned to the barracks.  The following morning he was apprehended by the Military Police and charged with assault with a deadly weapon, kidnapping, and robbery.  He was restricted to the unit area and was advised to seek legal counsel.  His attorney told him he had a 50/50 chance of winning his case in a trial by court-martial.  The lawyer also advised him that he could receive a general discharge in lieu of going to trial.  He states that he chose the general discharge option, but when he was handed his separation paperwork, he realized he had been given a UD.  He realized he had been discriminated against by all of those with whom he had spoken and sought counsel.  Due to all that he has gone through, he believes that he deserves a second chance.  He has been a good citizen and family man and he has not been able to obtain a decent job.  He has no criminal record except a charge for driving while under the influence that took place during the 1980's.  The applicant submits three character reference statements that indicate he is a hardworking, honest person devoted to his family, church and community.  The applicant also submits a copy of his DD Form 214 (Report of Separation from Active Duty), a copy of his separation packet, and a copy of his Social Security card.

COUNSEL STATES:  That the applicant has steadfastly asserted his innocence in the affair that resulted in his separation with a UD and that it appears to be the applicant's word against the person allegedly attacked.  It is difficult 26 years later to ascertain what is true and what is not, but dealing with compassion and a search for justice, the Board must, to the best of its ability, make a proper and just decision.

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

That on 24 October 1975, he enlisted in the Regular Army for 3 years and training in military occupational specialty (MOS) 71C (Stenographer).  He completed basic training at Fort Leonard Wood, Missouri and, on 4 January 1976, he was assigned to Fort Benjamin Harrison, Indiana, for advanced individual training.  

A Criminal Investigation Division (CID) Report of Investigation, dated 28 February 1976, indicates that between 2400 hours on 27 February and 0110 hours on 28 February 1976, the applicant forced another soldier into a park in the vicinity of Fort Benjamin Harrison, threatened the soldier with a knife, and forced the soldier to submit to a search.  He then stole the soldier's wallet containing $190.00, and a religious medallion.  Subsequently, the applicant and some other individuals that acted with him made superficial cuts into the soldier's neck, chest, arms, and face; however, the soldier did not require medical attention for his wounds.

On 28 April 1976, court-martial charges were preferred against the applicant for the above offenses.  

On 24 May 1976, the applicant consulted with legal counsel and requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200.  He acknowledged that he understood that he could receive a UD and the ramifications of receiving such a discharge.  He did not submit a statement in his own behalf.

On the same date, the applicant’s unit commander recommended that the applicant's request for discharge be approved and that he receive a UD.  The applicant's commander stated that the applicant had fully admitted to the offense for which he was charged; that due to the serious nature of the charges pending against the applicant and his past performance, he should receive the most expeditious discharge which would serve the best interest of the Army.  

On 25 May 1976, the battalion commander recommended that the applicant's request for discharge be approved and that he be issued a UD.   

On 28 May 1976, the brigade commander recommended that the applicant's request for discharge be approved and that he be issued a UD.  On an unknown date, the separation authority approved separation with a UD.

On 8 June 1976, the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200 with a UD.  His DD Form 214 shows that he had completed 7 months and 15 days of creditable active military service.  He had no recorded lost time.

On 24 January 1979, 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, 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.  However, at the time of the applicant's separation, the regulation provided for the issuance of a UD.

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 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.

2.  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.  There is no indication that the request was made under coercion or duress.  The type of discharge directed and the reasons for discharge were appropriate considering the facts of the case.

3.  The Board concluded that the applicant acknowledged in writing that he understood that he could receive a UD and that he understood the consequences of receiving such a discharge.  

4.  The Board acknowledges the applicant's successful transition to civilian life and noted his good conduct outlined in his application and/or in the documents with his application.  However, in review of the applicant’s entire service record, the Board found that these accomplishments did not overcome the reason for discharge and characterization of service granted.  Further, the Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities.  

5.  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

__jlp___  __aao___  __mvt___  DENY APPLICATION

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

INDEX

CASE ID	AR2002075413	
SUFFIX		
RECON		
DATE BOARDED	20030318	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19760608	
DISCHARGE AUTHORITY	AR 635-200, Chap10.  .  .  .  .  	
DISCHARGE REASON	A70.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.7000	
2.		
3.		
4.		
5.		
6.