MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 20 September 2001
         DOCKET NUMBER: AR2001060744

         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. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Raymond J. Wagner		Chairperson
Mr. Kenneth W. Lapin		Member
Ms. Paula Mokulis		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: In effect, that his discharge be upgraded to honorable.

APPLICANT STATES: In effect, that he has changed his life drastically since his discharge, which was the result of his being involved in an altercation with another soldier. He indicates that he had difficulty transitioning to civilian life as a result of trying to provide for his family. He also comments that he makes no excuses for his lack of judgement that brought about his discharge. He does indicate that he is sorry he fell short of the expectations of his peers and specifically the soldier he injured in the altercation that led to his discharge. Further, he claims that he and that soldier have remained friends and that he is grateful that this other soldier has continued to support him through these difficult years. He stated he has grown as a person and is accountable for the impact of his decisions. He claims that leaving the Army was difficult and the circumstances under which he left were shameful but he has tried to continue his life and it has not been easy to make peace with himself since he failed at something he whole-heartedly believed in. In support of his application, he provides the enclosed support statements from his mother, a supervisor, and the friend who was the other soldier in the altercation that led to his discharge, in which, they all attest to his good character.

COUNSEL CONTENDS: In effect, that the applicant’s discharge was inequitable because the incident upon which it was based was an isolated incident that took place in an otherwise honorable 7 year period of service. In addition, counsel claims that given the circumstances and relatively minor nature of the misconduct that led to the applicant’s administrative discharge, the victim’s input on appropriate punishment, and the compelling personal circumstances that lead to the applicant requesting a discharge, relief would be appropriate at this time. Counsel also comments that even the victim in the incident that resulted in the court-martial charge being preferred against the applicant indicated to prosecutors at the time that he did not believe a court-martial was appropriate. However, this did not result in the charge being reduced or dealt with by other less methods. Counsel stated that given the applicant’s family responsibilities and the fact that he was facing the possibility of incarceration, the applicant felt he could not fight the case and instead elected to request an administrative separation. Counsel insists the applicant still suffers from the constant frustration over his inability to fight the case at the time. Counsel concludes by commenting that since his discharge, the applicant has been steadily employed and has had no problem with law enforcement. The applicant and the victim of the altercation remain in close contact and are on a very friendly basis. The victim also supports the applicant’s relief request. Finally, counsel contends that ten years have now elapsed since the discharge and given the applicant’s overall record of service and the minor nature of the misconduct, his discharge should be upgraded. Counsel’s complete statement is enclosed.

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

On 4 October 1996, the applicant enlisted in the Regular Army for 3 years. At the time of this enlistment he had already completed 2 years, 5 months, and
13 days of prior military service in the Army National Guard.

The applicant’s Personnel Qualification Record (DA Form 2-1) shows that the highest rank he attained while serving on active duty was specialist four/E-4 (SPC/E-4). It also shows that during his service he earned the National Defense Service Medal and Army Service Ribbon. The applicant’s disciplinary history, prior to the incident that ultimately led to his discharge consisted of one Letter of Reprimand (LOR), which he received for operating a vehicle under the influence of alcohol.

A court-martial charge of aggravated assault was preferred against the applicant based on his altercation with another soldier. After consulting with legal counsel, who advised him of the basis for the contemplated trial by court-martial and the maximum allowable punishment under the Uniform Code of Military Justice (UCMJ), he voluntarily requested an administrative discharge in lieu of trial by court-martial. In his request for discharge, the applicant acknowledged guilt of the offense for which he was charged or of a lessor included offense and indicated that he understood the impact and effects of an under other than honorable conditions discharge. Finally, he elected not to submit a rebuttal statement in his own behalf.

The applicant’s unit and intermediate level commanders recommended approval of his request for administrative separation and recommended that he receive an under other than honorable conditions discharge. On 29 May 1998, the separation authority approved the applicant’s discharge request and directed he be discharged under other than honorable conditions and that he be administratively reduced to the lowest enlisted grade.

On 5 June 1998, the applicant was discharged and issued a Certificate of Release or Discharge from Active Duty (DD Form 214). This separation document confirms that he was separated under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court-martial. At the time of his discharge, the applicant had completed 4 years and 5 months of active duty on his current enlistment, 4 months and 20 days of prior active service, and 2 years and 23 days of prior inactive service.

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On 3 August 2001, the Army Discharge Review Board (ADRB), acting on a request from the applicant, found that the reason for the applicant’s discharge was proper and equitable but that the characterization of his service was inequitable. The ADRB voted to upgrade his characterization of service to general, under honorable conditions based on the overall length and quality of his service. This action also entailed a grade restoration to SPC/E-4. However, the ADRB also concluded that the applicant’s misconduct diminished the overall quality of his service below that meriting a fully honorable discharge.

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 submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, 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, applicable law and regulations, it is concluded:

1. The evidence of record shows the applicant, after consulting with defense counsel, voluntarily requested an administrative separation from the Army, under the provisions of chapter 10, Army Regulation 635-200, for the good of the service-in lieu of trial by court-martial. In doing so, he admitted guilt to the stipulated offense under the UCMJ and acknowledged that he understood the effects of an under other than honorable discharge.

2. The Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Further, the Board notes 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 Board concurs with the action taken by the ADRB to upgrade the applicant’s characterization of service to general, under honorable conditions based on his overall record of service. However, the Board also agrees with the ADRB position that the applicant’s misconduct diminished the overall quality of his service below that meriting a fully honorable discharge. Finally, the Board finds that relief beyond that already granted by the ADRB is not warranted in this case.

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 this 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:

__RJW__ __KWL___ ___PM GRANT

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION

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

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INDEX

CASE ID	AR2001060744
SUFFIX
RECON
DATE BOARDED	2001/09/20
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	1998/06/05
DISCHARGE AUTHORITY	AR 635-200 C10
DISCHARGE REASON	In lieu of Court-Martial
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 189	110.0000
2.
3.
4.
5.
6.