MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            24 April 2003
	DOCKET NUMBER:   AR2002082418

	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:

	Mr. Raymond V. O’Connor Jr.		Chairperson	
	Ms. Terry L. Placek		Member	
	Mr. Robert Duecaster		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 honorable.

APPLICANT STATES:  In effect, that a review of his records will show that his record of nonjudicial punishment was only for minor isolated offenses, that he had average conduct and efficiency ratings, was an E-4 promotable at the time of his discharge, had a prior honorable discharge and had received awards and commendations.  He further states that he was accused of bribery and after being interrogated by the Criminal Investigation Division (CID) for 4 to 6 hours, he, in a state of exhaustion, confessed to the charge.  He continues by stating that he was given a public defender who did not effectively advise him of his rights and the severity of the penalty he faced.  He goes on to state that he accepted discharge under chapter 10 without fully understanding the repercussions he would face in civilian life.  He also states that he accepts the fact that he did not behave in a manner befitting a soldier; however, he was 21 years of age at the time and his career was ended over the small sum of $10.00. He ask the Board to grant him clemency in the form of an upgrade of his discharge because he has been a productive member of society and should not continue to pay for a mistake that was regrettably made in his youth 20 years ago.  In support of his application he submits a copy of a CID Report of Investigation (ROI) pertaining to his case.

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

He enlisted on 13 June 1979 for a period of 4 years and training as a finance specialist.  He completed his training and was transferred to Germany on 12 October 1979.  He was advanced to the pay grade of E-4 on 1 July 1981.

He departed Germany on 11 October 1981 and was transferred to Fort Lewis, Washington, where he reenlisted on 12 April 1983 for a period of 3 years.  He attained promotion list standing in June 1983.

The facts and circumstances surrounding his administrative discharge are not present in the available records.  However, his records do contain a duly constituted report of separation (DD Form 214), which shows that he was discharged under other than honorable conditions on 25 April 1984, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of trial by court-martial.  He had served 4 years, 10 months and 13 days of total active service and was awarded the Army Service Ribbon, the Overseas Service Ribbon, the Noncommissioned Officer Professional Development Ribbon, the Army Good Conduct Medal, and the Expert Marksmanship Badge with M-16 Rifle bar.

A review of the CID ROI submitted by the applicant shows that the applicant was titled for soliciting a bribe, extortion and assault on 22 February 1984.  A synopsis of the investigation indicates that the applicant prepared a travel voucher for a soldier departing Fort Lewis en route to Germany and then proceeded to inform the soldier that he had overpaid him and that he should pay him (the applicant) $10.00 to keep quiet about it.  The soldier refused to pay the applicant and he grabbed the soldier by the arm to prevent him from leaving the finance office.  The incident was witnessed by several others in the area at the time.  The soldier reported the applicant and identified him as well.  

During the course of the investigation the applicant gave a sworn statement in which he gave a different account of the events but admitted that he had told the soldier he would keep quiet for $10.00.

There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

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 voluntary 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 or to a lesser included offense that is punishable by 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 was at that time and is still 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 must be presumed that 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.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records.  While he may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date, especially considering the charges against him and his otherwise undistinguished record of service. 

4.  The Board has noted the applicant's contentions and finds that they are not sufficiently mitigating to warrant relief under the circumstances.  While he may believe that the charges against him were minor and amounted to a $10.00 offense, he admitted to using his position for personal gain, to the detriment of the government and the individual soldier and violated the trust placed in him.  The Board finds that such conduct is not indicative of honorable service.

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

___tlp___  ___rld___  __rvo ___  DENY APPLICATION

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

INDEX

CASE ID	AR2002082418	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2003/04/24	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1984/04/25	
DISCHARGE AUTHORITY	AR635-200/ch10	
DISCHARGE REASON	Gd of svc	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  689	144.7000/A70.00	
2.		
3.		
4.		
5.		
6.