MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            28 January 2003
	DOCKET NUMBER:   AR2002076313

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Ms. Karol A. Kennedy		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Tracey L. Pinson		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 her report of separation (DD Form 214) be corrected to reflect that she was discharged in the pay grade of E-4.

APPLICANT STATES:  In effect, that she was unjustly reduced to the pay grade of E-1 because she refused to take the Anthrax vaccine.  She also states that no one is being discharged for refusing to take the Anthrax vaccine.  

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

She enlisted on 12 October 1994, for a period of 4 years and training as an automated logistics specialist.  On 17 April 1998, while serving in the pay grade of E-4, she reenlisted for a period of 4 years.  In both her enlistment and reenlistment contracts, she took an oath in which she acknowledged that she understood that as a member of the Armed Forces, she would be required to obey all lawful orders and perform all assigned duties.

On 10 November 1999, charges were preferred against the applicant for refusing a lawful order from a superior commissioned officer on 15 October 1999, to submit to mandatory Anthrax vaccine immunizations.

On 19 January 2000, after consulting with counsel, the applicant submitted a request for discharge for the good of the service, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  In her request, she indicated that she was making the request of her own free will, without coercion from anyone and that she was aware of the implications attached to her request.  She also admitted that she was guilty of the charges against her or of lesser-included offenses, which authorized the imposition of a bad conduct or dishonorable discharge.  She acknowledged that she understood that she could receive a discharge under other than honorable conditions and that she might be deprived of all benefits as a result of such a discharge.  She further declined to submit a statement or explanation in her own behalf.

The appropriate authority (a lieutenant general) approved her request on 21 January 2000 and directed that she be discharged under other than honorable conditions.  He also directed that she be reduced to the pay grade of E-1 in accordance with Army Regulation 600-8-19.

Accordingly, she was discharged under other than honorable conditions on 4 February 2000, in the pay grade of E-1, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  She had served 5 years, 3 months and 23 days of total active service.

There is no indication in the available records to show that the applicant has applied for an upgrade of her discharge to the Army Discharge Review Board. 

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against them or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and they must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive.  A discharge under other than honorable conditions is normally considered appropriate.

Army Regulation 600-8-19 serves as the authority for enlisted promotions and reductions.  Paragraph 6-15a provides, in pertinent part, that when the separation authority determines that a soldier is to be discharged under other than honorable conditions, the soldier will be reduced to the lowest enlisted grade.

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 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, with no indication of any violations of her rights.

2.  Accordingly, she was properly reduced to the lowest enlisted grade at the time the approving authority approved her request. 

3.  After being afforded the opportunity to assert her innocence before a trial by court-martial, she voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on her records.  In doing so she admitted guilt to the charge against her (disobeying a lawful order).  While she may now believe that she made the wrong choice, she should not be allowed to change her mind at this late date, especially considering the seriousness of the charge against her.

4.  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.

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

__kak___  __mm___  ___tp ___  DENY APPLICATION

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

INDEX

CASE ID	AR2002076313	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2003/01/28	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  322	133.0000/RED IN RK	
2.		
3.		
4.		
5.		
6.