MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 17 September 2002
         DOCKET NUMBER: AR2002075360

         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. Luis Almodova.		Analyst

The following members, a quorum, were present:

Mr. Elzey J. Arledge		Chairperson
Mr. Thomas B. Redfern, III		Member
Ms. Karen A. Heinz		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, in effect he would like to have his chapter 10 discharge upgraded to a more favorable discharge.

APPLICANT STATES: That he does not believe the record to be in error or unjust. He adds that he has lived with the guilt a long time and he feels much remorse and he is very sorry for what he did to his beloved country and to himself.

The applicant has submitted nothing, besides his statement on the application itself, in support of his request.

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

He enlisted in the US Army Reserve on 16 May 1980 for 6 years in the pay grade E-1 to participate in the Delayed Entry/Enlistment Program (DEP). On 9 July 1980, he enlisted in the Regular Army and entered active duty for a period of 3 years and training as a Motor Transport Operator, military occupational specialty, 64C10.

He successfully completed his training and was assigned to Fort Polk, Louisiana, as his first duty station. While at Fort Polk, he was promoted through the ranks attaining the rank and pay grade of Specialist Four, E-4 on 1 October 1981. This was to be the highest rank and pay grade that he would attain during his service.

In November 1981, he was transferred to Germany and was assigned to Service Battery, 2^nd Battalion, 75^th Field Artillery, 3^rd Armored Division.

On 28 May 1982, the German Polizei apprehended the applicant and three other individuals for violation of German drug laws. In addition to having violated these laws, the applicant was found to be absent without leave from his unit. Following preliminary investigations by German authorities, the applicant was returned to military control on the same date.

On 29 May 1982, charges were brought against the applicant for being absent without leave from on or about 0600 hours, 19 April until on or about 0300 hours, 26 April 1982 and from 1630 hours 26 April until 1545 hours 28 May 1982 and for wrongfully possessing some quantity of a habit forming drug. On this same date, the applicant was placed in pre-trial confinement.

On 12 July 1982, 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

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and that he was aware of the implications attached to his request. He also acknowledged that he understood that he could receive a discharge under other than honorable conditions and that he might be ineligible for many of the benefits administered by the Veterans Administration and that he may be deprived of his rights and benefits as a veteran under both Federal and State law. The applicant elected not to submit a statement in his own behalf and elected not to undergo a separation physical examination.

The chain of command consisting of a battery, battalion, and a division artillery commander all recommended approval of the requested discharge and further recommended that the applicant be provided a discharge under other than honorable conditions. On 16 August 1982, the 3^rd Armored Division Commander, a Major General, approved the applicant's request and ordered that the applicant be reduced to the rank and pay grade of Private, E-1, that he be discharged from the service for the good of the service and provided a DD Form 794A, Discharge Certificate Under Other than Honorable Conditions.

Accordingly, the applicant was transported back to the continental United States and was discharged under other than honorable conditions on 3 September 1982 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 2 years, 18 days net active Federal service on his discharge date and had 40 days of lost time due to absence without leave and confinement.

There is no indication in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

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 submit, at any time after charges have been preferred, a voluntary 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 indicate that he has been briefed and understands the consequences of such a request as well as the discharge he might receive. A discharge under other than honorable conditions was at that time and is still 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:

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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. The applicant has admitted that he does not believe the record to be in error or unjust and the Board finds no irregularities or injustice.

2. 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. 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 his undistinguished record of service.

3. Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

4. 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

__eja___ __tbr___ __kah___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002075360
SUFFIX
RECON
DATE BOARDED	20020917
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	19820903
DISCHARGE AUTHORITY	AR 635-200, Ch 10
DISCHARGE REASON	A70.00
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	144.0000
2.	144.7000
3.
4.
5.
6.