MEMORANDUM OF CONSIDERATION


	IN THE CASE OF: 

	BOARD DATE:            21 May 1998                 
	DOCKET NUMBER:    AC97-08416

	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.  The following members, a quorum, were present:




	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	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:  In effect, that his discharge under other than honorable conditions (UOHC) be upgraded to a general/under honorable conditions discharge (GD).

APPLICANT STATES:  In effect, that he was judged harshly for this single act with no regard for his accomplishments during his military career.

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

On 7 June 1994 the applicant reenlisted for 3 years while at Fort Stewart, Georgia.  At the time of his reenlistment the applicant had completed 4 years and 13 days of honorable active service and 3 years, 11 months, and 11 days of honorable inactive service.  Additionally, he held military occupational specialty (MOS) 31U (Radio Operator); had attained the rank of corporal/E-4; had completed an overseas tour of duty in Germany;  and had received the following awards:  the Army Achievement Medal; the Good Conduct Medal; the National Defense Service Medal; the Southwest Asia Service Medal with 1 bronze service star; the Army Service Ribbon; the Overseas Service Ribbon; and the Kuwait Liberation Medal.

The applicant’s record for the period of service under review documents no individual acts of valor, achievement or service warranting special recognition and no documented history of disciplinary infractions prior to the incidents resulting in his discharge.

The evidence of record indicates that court-martial charges were preferred against the applicant for violation of Articles 107 and 123 of the UCMJ for making a false official statement and for forgery.  The record also contains documented evidence that on 20 February 1996, the applicant voluntarily requested discharge for the good of the service-in lieu of trial by court-martial, under the provisions of chapter 10 of AR 635-200.  This request was made after the applicant had been advised by counsel of the basis for his contemplated trial by court-martial, the maximum permissible punishment, and of the possible effects of a UOHC.  In addition, the applicant commented that he understood that by making the request he understood the elements of the offenses for which he was charged and admitted his guilt to the charges.  Moreover, he stated that under no circumstances did he desire further rehabilitation, because he had no desire to perform further military service.  The applicant also attested to the fact that he fully understood he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Department of Veteran Affairs, and that he may be deprived of veterans benefits under state and federal law.


On 20 February 1996 the applicant’s unit commander recommended approval of the applicant’s request for discharge for the good of the service, in lieu of trial by court-martial and recommended the applicant’s service be characterized as UOHC.  

On 21 February 1996 the appropriate authority approved the applicant's request for discharge and directed issuance of a discharge UOHC.  Accordingly, on 
29 February 1996 the applicant was discharged after completing 1 year, 
8 months, and 23 days of his current enlistment and a total of 5 years, 5 months, and 4 days of active military service and 3 years, 10 months, and 22 days of inactive service.

The DD Form 214 (Certificate of Release or Discharge From Active Duty) issued by the transition center at Fort Stewart, Georgia contained erroneous data in the following item numbers 25, 26 and 28.  The DD Form 214 listed paragraph 
14-12b of AR 635-200 as the separation authority; JKA as the separation code and Misconduct as the narrative reason for separation.  The correct entries should have been Chapter 10 of AR 635-200 as the separation authority in item 25; KFS as the separation code in item 26; and In Lieu of Trial by Court-Martial as the narrative reason in item 28.  

On 10 June 1997 the Army Discharge Review Board denied the applicant's request for an upgrade to his discharge and found that the discharge process was proper in all respects.  However, the ADRB did note and accept as an issue that the separation authority and reason for discharge listed on the DD Form 214 issued to the applicant were incorrect.  Accordingly, they directed a new 
DD Form 214 be issued the applicant with corrections indicated in the preceding paragraph.  

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 are 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. 




DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, and applicable law and regulations, it is concluded:

1.  The Board noted the applicant’s contention that his discharge was too harsh based on his overall record of service.  However, after examining the applicant's record of service during the period of enlistment under review, and giving full consideration of all faithful and honorable service, the Board concluded that the discrediting entries in the applicant's record were not mitigated by prior or subsequent service of sufficient merit to warrant an upgrade of the discharge being reviewed.

2.  The evidence of record shows the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  The Board noted that after consulting with legal counsel, the applicant voluntarily, and in writing, requested separation from the Army in lieu of trial by court-martial.  In doing so, the applicant admitted guilt to the stipulated offenses under the UCMJ.  The Board was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The Board also noted that the characterization of service for this type of discharge is normally under other than honorable conditions and that the applicant was aware of that prior to requesting discharge.

3.  The discharge proceedings were conducted in accordance with law and regulation applicable at the time.  The reason for and the character of the discharge are commensurate with the applicant's overall record of military service.

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 the aforementioned 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

________  ________  ________  DENY APPLICATION




						Loren G. Harrell
						Director