MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 22 July 1998
         DOCKET NUMBER: AC97-11463

         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:

Mr.	Calvin M. Fowler		Chairperson
Mr.	Fred N. Eichorn		Member
Mr.	Raymond V. O’Connor Jr.		Member

         Also present, without vote, were:

Mr.	Loren G. Harrell		Director
Mr.	Joseph A. Adriance		Analyst

         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)

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APPLICANT REQUESTS: In effect, that the general/under honorable conditions discharge (GD), granted by the Army Discharge Review Board (ADRB), be upgraded to a fully honorable discharge (HD); that the narrative reason for discharge be changed to expiration of term of service (ETS); that the reentry (RE) code be changed to RE-1, fully eligible to reenlist; that the applicant be paid all travel, leave, and other pay forfeited due to the original discharge and all regular pay to the date of discharge; that all records in the Official Military Personnel File (OMPF) pertaining to the grounds for the original discharge be deleted; that the Board add to the OMPF instructions that all federal entitlements, including those from the Department of Veterans Affairs, that were forfeited based on the original discharge are now in effect; and that a statement be added to the OMPF, by order of the Secretary, that no negative inference be drawn by any federal agency due to corrective action taken by the Board because the original grounds for the under other than honorable conditions discharge (UOHC) discharge have been voided.

APPLICANT STATES: In effect, that his discharge was improper because court-martial charges were based on the testimony of two flawed government witnesses; that he never used or distributed a controlled substance while on active duty; that he took the chapter 10 because his military defense counsel told him he could not get military counsel of Filipino decent; that his civilian counsel said it would cost him more if he went to trial; that he was being singled out because of his race; and that he had already gone past his ETS date, was ready to start college so he could not risk a felony conviction.

COUNSEL CONTENDS: In effect, that this action is an appeal of the ADRB decision to upgrade the applicant’s under other than honorable conditions discharge (UOHC) to a GD but declining to provide the full relief requested; that the evidence of record and that submitted to the ADRB raises substantial doubt that the applicant was guilty of the charges; that the applicant’s resignation in lieu of court-martial was coerced; and that the ADRB decision was unusual and contains contradiction which would indicate the ADRB members must have believed all or most of the applicant’s version of the facts. Counsel’s full brief with exhibits is enclosed.

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

On 26 April 1988 the applicant entered the Regular Army for a period of 3 years at the age of 25. He successfully completed One Station Unit Training (OSUT) at Fort Benning, Georgia. Upon completion OSUT he was awarded military occupational specialty 11B (Infantryman) and assigned to Fort Carson for his permanent duty station.

The applicant’s record indicates the highest grade he held on active duty was private first class/E-3 and that he had earned the Army Service Ribbon, the National Defense Service Medal, and that he had received two Battalion Certificates of Achievement.

The evidence of record indicates that on 2 May 1991 a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violation of Article 112a of the UCMJ. The charge contained two specifications: the first specification was for wrongfully distributing approximately 2.66 grams of marijuana and the second specification was for wrongfully using marijuana.

The record also contains documented evidence that on 8 July 1991 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. The applicant’s request was made only after he had been advised of the basis for the contemplated trial by court-martial by his appointed military counsel, and a civilian counsel he had retained independent of the government. In his request the applicant attested to the fact that the request was being made of his own free will; that he had not been subjected to coercion whatsoever by any person. He further stated that he had been advised of the implications attached to the action; that he understood the elements of the offense charged and that he was guilty of the charge against him, or of a lesser included offense, which authorized the imposition of a bad conduct or dishonorable discharge. The applicant also acknowledged 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; that he may be deprived of veterans benefits under state and federal law; and that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service.

As part of his request for discharge the applicant submitted a statement in his own behalf. In the statement he indicated, in effect, that he wanted the discharge so he could graduate from college without disruption; that he intended to continue his education; that he would like to pursue a career in law enforcement; and that he would have been discharged honorably in April 1991, if not for the Gulf war, and again in May 1991 if charges had not been brought against him. The applicant concluded his statement by commenting that he was in his senior year of college, in pursuit of a degree in management of human resources, and that he was not yet a United States citizen.

On 24 July 1991 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 receive a UOHC.

On 25 July 1991 the first intermediate level commander recommended approval of the applicant’s request with a UOHC, and on 26 July 1991 the second intermediate level commander also recommended approval of the action with a UOHC.

On 29 July 1991 the appropriate authority approved the applicant's request for discharge and directed issuance of a UOHC. Accordingly, on 23 August 1991 the applicant was discharged after completing 3 years, 3 months and 14 days of military service.

On 26 June 1995 the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade to his discharge and found that the discharge process was proper in all respects.

On 10 May 1997 the applicant and his counsel personally appeared and testified before the ADRB requesting an upgrade of his discharge. On 11 June 1997 the ADRB upgraded the applicant’s discharge to GD, based on the applicant’s overall record of service. However, the ADRB further concluded that the reason for discharge was proper, and that the discharge process was proper in all respects.

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 UOHC normally is appropriate for a soldier who is discharged for the good of the Service; however, the separation authority may direct a general discharge certificate, if such is merited by the soldier’s overall record during the current enlistment.

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 Board concurs with the findings and conclusions of the ADRB and presumes that the applicant's administrative separation was accomplished in compliance with applicable regulations. There is no indication of procedural errors by the ADRB which would tend to have substantially jeopardized the applicant's rights.



2. The Board evaluated the applicant’s appeal of the ADRB decision, which he contended contained contradictions, given a GD was inconsistent with a Chapter 10 discharge; thus, indicating ADRB members believed all or most of the applicant’s version of facts relating to the discharge process. However, the Board concluded the ADRB decision to upgrade the applicant’s discharge, based on his overall record of service for the period of service under review, was fully consistent with regulatory guidance. Paragraph 10-8, AR 635-200 states, in pertinent part, that the separation authority may direct a GD, if such is merited by the soldier’s overall record during the current enlistment.

3. The contentions of the applicant and his counsel that the applicant was coerced into requesting discharge and that he had inadequate counsel have been noted by the Board. However, they are not supported by either evidence submitted with the application or the evidence of record. The applicant's voluntary request for separation under the provisions of AR 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 applicant stated, in his request for discharge, that he was taking the action of his own free will, and that he had not been subjected to coercion whatsoever by any person. Additionally, the record shows he requested a chapter 10 discharge only after he, appropriately and properly, consulted with both his appointed military counsel, and a civilian lawyer he retained, independent of and at no cost to the government.

4. The Board noted that the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge. He was afforded all rights associated with the action and voluntarily, in writing, requested separation from the Army in lieu of trial by court-martial. The applicant chose to request an administrative discharge rather than risk the consequences of a court-martial. Although he may now feel that he made the wrong choice, he should not be allowed to change his mind at this late date.

5. 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.

6. Since there is no basis to grant the portion of his request pertaining to the characterization of service and the narrative reason for discharge, there is likewise no basis to grant the remaining requests.

7. 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