MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 16 October 2001
         DOCKET NUMBER: AR2001059208

         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
Mr. Donald P. Hupman, Jr.		Member
Ms. Regan K. Smith		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 discharge under other than honorable conditions be upgraded to honorable.

APPLICANT STATES: In effect, that his discharge should be upgraded because he had previously received an honorable discharge and because he was young at the time and did not know that his actions would bring dishonor to the Army. He also states that he has since turned his life around and is remorseful for being a partner in disrupting a marriage. He goes on to state that he regrets his behavior and apologizes for any embarrassment he caused the Army. He also states that he is an ordained deacon involved in the “Free Indeed Drug Ministry” and is employed as a cab driver for the city of Hampton. In support of his application, he submits a letter of support from a city official which indicates that the applicant is a community and church leader, an ordained deacon and the organizer and chairman of the “Free Indeed Ministry”.

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

He initially enlisted on 21 June 1974 for a period of 4 years, training as an armor crewman, assignment to Europe and a cash enlistment bonus. He successfully completed his training and was transferred to Germany on 13 January 1975.

While in Germany, nonjudicial punishment was imposed against him on three separate occasions for offenses ranging from disobeying a lawful order from a senior noncommissioned officer (NCO), wrongfully engaging in a fist-fight with an NCO and failure to go to his place of duty.

He departed Germany on 15 April 1977 and was transferred to Fort Lewis, Washington.

On 20 December 1977, the applicant was honorably discharged in the pay grade of E-4 for the purpose of immediate reenlistment. He had served 3 years and 6 months of total active service.

He reenlisted on 21 December 1977 for a period of 6 years, stabilization at Fort Lewis and payment of a selective reenlistment bonus. He was promoted to the pay grade of E-5 on 30 June 1978.

On 27 April 1979, charges were preferred against the applicant for committing sodomy (article 125) and having sexual intercourse (adultery) with a woman who was not his wife (article 134), on 19 March 1979.

On 7 May 1979, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. In his request, he indicated that he was making the request of his own free will, without coercion from anyone and that he was aware of the implications attached to his request. He also admitted that he was guilty of the charges against him or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge. He also elected to submit a statement in his own behalf, whereas he asserted that he knew that he should be discharged from the Army because of the shame and disgrace he had brought on the Army. He also indicated that he was going to get out of the Army and work with his father-in-law as a mechanic in order to support his wife and child. He stated that he believed that rehabilitation would not benefit the service and that a discharge for the good of the service would be appropriate.

The appropriate authority (a major general) approved his request on 9 May 1979 and directed that he be discharged under other than honorable conditions.

Accordingly, the applicant was discharged under other than honorable conditions on 21 May 1979, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 1 year, 5 months and 1 day of active service during his current enlistment for a total of 4 years, 11 months and 1 day of total active service.

In 1984 the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge. At that time, he offered no issues of propriety or equity to warrant an upgrade of his discharge and the ADRB determined that he had been properly discharged. The ADRB denied his application on 29 May 1985.

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 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 against them or of a lesser included offense which authorizes the imposition of 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 is normally considered appropriate and there never have been any provisions for an automatic upgrade of such a discharge.

The Manual for Courts-Martial provides the maximum punishment that may imposed for offenses that are tried and convicted by a duly constituted court-martial. It provides, in pertinent part, that the maximum punishment the applicant could have received for the offenses for which he was charged was a dishonorable discharge, confinement at hard labor for 6 years, and total forfeiture of all pay and allowances.

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 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. The applicant’s contentions and supporting documents have been noted by the Board. However, the Board notes that 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. In doing so he admitted guilt to the charges against him. 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 seriousness of the offense, the extensive length of his absence and his rank at the time.

4. While the Board commends the applicant on his post-service accomplishments, they are not sufficient to overcome the seriousness of the charges against him when compared to his overall record of service.

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 this requirement.

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

__dh____ __rvo ___ ___rks___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001059208
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2001/10/16
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	1979/05/21
DISCHARGE AUTHORITY	AR635-200/CH10
DISCHARGE REASON	GD OF SVC
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 689	144.7000/GD OF SVC
2.
3.
4.
5.
6.