MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 2 August 2001
         DOCKET NUMBER: AR2001051914

         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. Robert J. McGowan		Analyst

The following members, a quorum, were present:

Mr. Raymond J. Wagner		Chairperson
Ms. Barbara J. Ellis		Member
Mr. John P. Infante		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)

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APPLICANT REQUESTS: That his under other than honorable conditions (UOTHC) discharge be upgraded to an Honorable Discharge (HD).

APPLICANT STATES: In a 5-page statement, that he was unjustly court-martialed for assault on a fellow soldier because he had wrestled against his company commander in a wrestling tournament and won. During his victory, he gave his commander a black eye and he [commander] wanted to get even with him. The assault was nothing more than an accident between two friends during horseplay, but his captain used it as a pretext to retaliate for the wrestling loss. Court-martial charges were preferred against him, but he was not worried because he knew the victim [his friend] would tell the truth. Unfortunately, the victim was transferred before the trial and did not testify. After his conviction, he was reassigned to another installation and, there, a sergeant didn't like him. One day he entered the barracks to see the new beer machine [he didn't live in the barracks]. The sergeant, who was on duty as the Charge-of-Quarters, ordered him to sweep the halls. He did as he was told, then quickly left the barracks and departed the unit area by automobile. The sergeant followed him in his car and rammed the applicant's vehicle forcing him to stop. The applicant got out of his car and ran, but the sergeant caught him and threw him to the ground. He [applicant] called for the Military Police, but because he was black and the sergeant was white, he was the one who went to jail. In jail, he was asked if he wanted to get out of the Army and he said that he did.

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

He enlisted in the Regular Army for 3 years on 12 November 1974. He completed basic combat training at Fort Ord, California and was transferred to Fort Lee, Virginia for advance individual training (AIT) in military occupational specialty (MOS) 76W, Petroleum Supply Specialist.

While in AIT, court-martial charges were preferred against the applicant for a violation of Article 128, Uniform Code of Military Justice, for committing an assault upon a fellow soldier on or about 10 February 1975 by striking him with a knife. At a Special Court-Martial, he pleaded not guilty, but was found guilty on 4 April 1975 and sentenced to be reduced to Private (PVT/E-1), and confined at hard labor for 2 months. He was sent to the Area Confinement Facility, Fort Meade, Maryland and then to the US Army Retraining Brigade, Fort Riley, Kansas for service of his sentence.

Upon his release from confinement, the applicant was transferred to Fort Rucker, Alabama, arriving there in June 1975. At Fort Rucker, he received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, on 13 November 1975, for making a false written statement that he was residing off-post with his family [as opposed to living in the barracks] when his family did not reside in the State of Alabama, and for failing to go to his place of duty. As punishment, he was given a suspended reduction to Private, forfeiture of $80.00, and 14 days of extra duty.

Also at Fort Rucker, court-martial charges were again preferred against the applicant for disobeying a lawful order from his commander to get a haircut; for disobeying the lawful order of a Warrant Officer to report to the Orderly Room; for breaking restriction; and for disobeying the lawful order of a Specialist Five to report to a First Lieutenant in the Orderly Room. On 17 March 1976, he consulted with counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation (AR) 635-200, chapter 10, in lieu of trial by court-martial. In so doing, he acknowledged that he was guilty of the charges against him which authorized the imposition of a bad conduct or dishonorable discharge, and added that he had no desire for rehabilitation or further military service. He stated that he understood the nature and consequences of the UOTHC discharge that he might receive.

The approving authority approved the applicant's request for discharge on 19 March 1976. He was separated on the same date with a UOTHC discharge. He had 1 year, 2 months, and 14 days of creditable service and 54 days of lost time.

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 UOTHC discharge is 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 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.

2. The record shows that the applicant was convicted of assaulting a fellow soldier; there is no evidence in the record to support the applicant's contention that he accidentally cut the other soldier while engaged in horseplay.

3. The record shows that the applicant was a disciplinary problem at Fort Rucker. He received NJP for falsely claiming that his family resided in the local area in order to live off-post. Court-martial charges were preferred against him for multiple specifications of disobeying orders, and for breaking restriction. His 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.

4. 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.

5. There is no indication in the applicant's records that he was the victim of racial prejudice or discrimination.

6. 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

_rjw_____ __bje___ __jpi ___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001051914
SUFFIX
RECON
DATE BOARDED	20010802
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	19741112
DISCHARGE AUTHORITY	AR 635-200 C10
DISCHARGE REASON	A71.00
BOARD DECISION	DENY
REVIEW AUTHORITY	DIRECTOR
ISSUES 1.	110.0000
2.
3.
4.
5.
6.