APPLICANT REQUESTS: In effect that his discharge under other than honorable conditions (UOTHC) be upgraded to honorable.
APPLICANT STATES: He acknowledged that he was discharged for fighting and charged with assault. He states that as a result of this discharge he encountered prejudice and was denied employment many times. He reports that he has never been in trouble with the law and he has worked 15 years for the city of Laredo.
EVIDENCE OF RECORD: The applicant's military records show:
The applicant enlisted on 25 November 1974, completed infantry training and was assigned to the lst Cavalry Division in Germany in November 1975. He received an Article 15 for pulling someones hair, was charged with two counts of assault, charged with the wrongful use of a provoking gesture and drunk and disorderly the first five months of his assignment.
On 29 March 1976, charges were preferred for wrongful use of a provoking gesture in which the applicant spit in the face of an enlisted soldier and was charged with striking two enlisted soldiers in the face. The applicant consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial. His request acknowledged that he was guilty as charged or of a lesser included offense for which he could also receive a punitive discharge. He also stated that he understood the nature and consequences of the UOTHC discharge which he might receive. The separation authority approved the applicants request and directed that a UOTHC Discharge Certificate be issued. The applicant waived a separation medical examination and was separated on 10 May 1976 under the provisions of Army Regulations 635-200, chapter 10. The applicant had 1 year, 5 months, and 16 days active duty service in the Army on the date of discharge.
Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent 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 an undesirable discharge.
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:
While the Board has taken cognizance of the applicants employment problems, and his unsubstantiated good post-service conduct; none of these factors, either individually or in sum, warrant the relief requested.
The applicant's request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.
The discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with the applicant's overall record of military service.
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
DENY APPLICATION
Karl F. Schneider
Acting Director
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