MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 28 January 2003
         DOCKET NUMBER: AR2002078645

         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:

Ms. Karol A. Kennedy		Chairperson
Mr. Melvin H. Meyer		Member
Ms. Tracey L. Pinson		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 under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge.

APPLICANT STATES: In effect, that he became involved in the black market to supplement his military salary after discovering that it was common practice among both officers and enlisted soldiers. He ultimately married a Korean prostitute who was pregnant and encouraged him to became more heavily involved in the black market in order to better support her, his daughter and his wife’s family.

The applicant claims that shortly prior to his scheduled return to the United States, his involvement in the black market grew larger. He claims that his wife introduced him to a Korean man who asked him to go to Japan and ship back large black market items. Thinking this would be easy money, he consented. He made the trip and upon his return expected payment from the Korean man. However, the man refused to pay him and told him that if he made a second trip he would receive his payment plus more. Not knowing he was under investigation by the Criminal Investigation Division (CID), he made the second trip to Japan. Upon his return from the second trip, he was confronted by the CID and told that he would be charged with black marketing and dishonorably discharged if he did not cooperate. He fully cooperated with the CID, and was allowed to be discharged administratively with an UOTHC discharge.

The applicant finally states that he accepts responsibility and is very sorry for the things he did in his past, and has learned that money is not what counts, rather it is honesty and integrity. He states that subsequent to his discharge, he has been a responsible citizen and has been gainfully employed. He further states that he has no criminal record and has worked hard to get where he is at the present time. He concludes that he is deeply sorry for his wrongdoing and requests the Board’s consideration in this matter.

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

On 29 March 1976, he enlisted in the Regular Army for 4 years. He successfully completed basic training at Fort Leonard Wood, Missouri, and advanced individual training (AIT) at Fort Benning, Georgia. Upon completion of AIT, he was awarded military occupational specialty 11B (Infantryman).

The applicant’s Personnel Qualification Record (DA Form 2-1) confirms that the highest rank he attained while serving on active duty was specialist/E-4
(SPC/E-4), and that during his active duty tenure he earned no individual military awards or decorations. Further, his record documents no acts of valor, significant achievement, or service warranting special recognition.

However, the applicant’s record does reveal a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 29 June 1977, for two specifications of failing to go to his appointed place of duty.

The evidence of record confirms that while assigned in Korea, on 6 December 1979, the applicant was charged with six specifications of violation of Article 92 of the UCMJ. The specific facts and circumstances pertaining to the applicant’s discharge processing are not on file in the record. However, there is a properly constituted separation document (DD Form 214) on file that contains the authority and reason for his discharge.

On 9 April 1980, the applicant was discharged UOTHC after completing a total of 4 years and 11 days of active military service. The separation document
(DD Form 214) issued to him at this time confirms that he was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service/in lieu of court-martial.

On 20 May 1982, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade to his discharge after concluding that it was proper and equitable.

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 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 Board notes the applicant’s request for an upgrade of his discharge, and considered his post service conduct and accomplishments. However, it finds that this factor is not sufficiently mitigating to warrant the requested relief.

2. The applicant’s record is void of the specific facts and circumstances surrounding his discharge processing. However, the Board notes that the record does confirm he was charged with an offense that was punishable under the UCMJ with a punitive discharge, and it contains a properly constituted DD Form 214, which identifies the reason and characterization of the applicant’s discharge. Therefore, the Board presumes Government regularity in the discharge process.
3. The evidence of record confirms that the applicant was discharged under the provisions of Chapter 10, AR 635-200, for the good of the service/in lieu of
court-martial. In connection with such a discharge, he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Procedurally, he was required to consult with defense counsel, and to voluntarily request separation from the Army in lieu of trial by court-martial. In doing so, he admitted guilt to the stipulated offense under the UCMJ.

4. In the absence of information to the contrary, 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 finds that the applicant’s discharge accurately reflects the overall quality of his 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

__KAK__ __MHM _ __TLP __ DENY APPLICATION

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

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INDEX

CASE ID	AR2002078645
SUFFIX
RECON
DATE BOARDED	2003/01/28
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	1980/04/09
DISCHARGE AUTHORITY	AR 635-000 C10
DISCHARGE REASON	In Lieu of Court-Martial
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 306	144.0000
2.
3.
4.
5.
6.