MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 11 February 2003
         DOCKET NUMBER: AR2002078109

         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. Samuel A. Crumpler		Chairperson
Ms. Regan K. Smith		Member
Mr. Antonio Uribe		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 a more favorable discharge.

APPLICANT STATES: The applicant has presented no evidence or argument in support of his request.

COUNSEL CONTENDS: That the applicant's official records amply advance his request and reflect the probative facts needed for an equitable review of his case.

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

He enlisted in Columbia, South Carolina, on 23 September 1976 for a period of 3 years, training as an infantry indirect fire crewman and assignment to the 101^st Airborne Division (Air Assault) at Fort Campbell, Kentucky. He successfully completed his training and was transferred to Fort Campbell on 24 January 1977. He was advanced to the pay grade of E-3 on 10 September 1977.

On 29 November 1977, nonjudicial punishment (NJP) was imposed against him for altering a sick slip, for the purpose of avoiding field duty. His punishment consisted of a reduction to the pay grade of E-2, a forfeiture of pay and extra duty.

The applicant was arrested by civil authorities in Alabama on 28 December 1977 and was charged with possession of drugs. He was found guilty on 31 January 1978 and paid a fine.

On 10 February 1978, NJP was imposed against him for sleeping on guard duty in his car. His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of pay and correctional custody for 30 days.

The applicant was arrested by civil authorities in Clarksville, Tennessee, on 4 June 1978 and was charged with receiving money and property under false pretenses. He was confined pending trial on 19 June 1978.

On 26 June 1978, charges were preferred against the applicant for stealing four tires and wheels from another soldiers that were valued at $645.00.

On 6 July 1978, 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 acknowledged that he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge. He further elected to submit a statement or explanation in his own behalf whereas he admitted that he had stolen the tires as a means to get out of the Army after all previous attempts for a compassionate and hardship discharge had failed. He asserted that his grandmother, who had raised him, was in poor health and in need of his help and presence. He requested that he be given a general discharge.

The appropriate authority approved his request and directed that he be discharged under other than honorable conditions.

Accordingly, he was discharged under other than honorable conditions while on excess leave, on 25 July 1978, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 1 year, 10 months and 3 days of active service and had 38 days of lost time due to confinement by civil authorities.

The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 27 November 1978. He asserted at that time that he was not given an opportunity to plead his case and that it was not explained to him at the time the difference between court-martial and a chapter 10 discharge. He was granted a personal appearance before that board with representation by counsel.

He and his counsel appeared before the ADRB on 10 September 1979 and gave testimony in his case. After reviewing the testimony and evidence of record, the ADRB determined that his discharge was both proper and equitable. That board voted unanimously to deny relief on 18 September 1979.

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.

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 courtmartial, 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. 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 his otherwise undistinguished record of service during such a short period of time.

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:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

_rks ____ ___au___ ___sac __ DENY APPLICATION

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

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INDEX

CASE ID	AR2002078109
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/02/11
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	1978/07/25
DISCHARGE AUTHORITY	AR635-200/CH10
DISCHARGE REASON	GD OF SVC
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 689	144.7000/A70.00
2.
3.
4.
5.
6.