MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 12 August 2003
         DOCKET NUMBER: AR2003085944

         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
Ms. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Mr. Ted S. Kanamine		Chairperson
Mr. William D. Powers		Member
Mr. Frank C. Jones		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. He also requests that he be reinstated in the Army.

APPLICANT STATES: In effect, that he was working as an undercover informant for the Criminal Investigation Division (CID), that his cover was blown after his captain was informed of his CID activities and that soldiers in his company made several attempts on his life. He contends that he took the discharge to save his life after he was sent back to his barracks where people wanted to kill him for being a "narc." In support of his application, he submits a letter, dated
19 January 1994, from a Member of Congress; a letter, dated 11 January 1994, from the U.S. Army Criminal Investigation Command with enclosures; a Request for Discharge for the Good of the Service, dated 9 May 1978; a Veterans Affairs (VA) Administrative Decision, dated 27 February 1979; a letter from the VA, dated 6 March 1979; the separation authority action, dated 18 May 1979; a Request to VA for Military Information for Employment Compensation Purposes, dated 10 July 1978; and a DA Form 2496 (Disposition Form), dated 9 May 1979.
EVIDENCE OF RECORD: The applicant's military records show:

The applicant enlisted on 4 May 1977 and completed basic combat training, advanced individual training and airborne school.

On 8 May 1978, nonjudicial punishment was imposed against the applicant for sleeping on his post. His punishment consisted of a reduction to E-1, a forfeiture of pay and extra duty.

The facts and circumstances surrounding the applicant's discharge are not available. However, the applicant provided a copy of his Request for Discharge for the Good of the Service, dated 9 May 1978, which shows that charges were preferred against him for being disrespectful to a superior commissioned officer, disobeying a lawful command from his superior commissioned officer and resisting apprehension.

On 9 May 1978, after consulting with counsel, the applicant submitted the request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10. He acknowledged that he was guilty of the charges against him, he indicated in his request that he understood he could be discharged under other than honorable conditions and that he had been advised and understood of the possible effects of a Discharge Certificate Under Other than Honorable Conditions; that he would be deprived of many or all Army benefits; that he may be ineligible for many or all Army 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. He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable discharge. The applicant elected not to submit a statement in his own behalf.

The applicant provided a copy of the separation authority's action, dated 18 May 1978, which shows his request for discharge was approved and the separation authority directed that the applicant be furnished a discharge under other than honorable conditions.

Accordingly, the applicant was discharged under other than honorable conditions on 26 May 1978 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service. He had served 1 year and 23 days of total active service.

On 6 October 1981, the Army Discharge Review Board (ADRB) denied the applicant's request for a discharge upgrade to honorable. The ADRB proceedings contain an affidavit executed by the applicant wherein he states that nonjudicial punishment was imposed against him for being absent without leave (AWOL) in December 1977 and that he was convicted by a summary court-martial for being AWOL in January 1978. The ADRB Case Report and Directive states that "The record together with testimony does indicate that a number of charges were under consideration such as sleeping on guard, disrespect to a unit commander, insubordination, disorderly conduct, the possible use of force and possible possession of and use of marijuana were being developed."

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.

Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

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. 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.

2. The Board considered the applicant's contention that he took the discharge to save his life after he was sent back to his barracks where people wanted to kill him for being a "narc." However, the applicant's Request for Discharge for the Good of the Service shows that he requested discharge because of preferred charges pending against him for being disrespectful to a superior commissioned officer, disobeying a lawful command from his superior commissioned officer and resisting apprehension.

3. In the absence of evidence to the contrary, it must be presumed that 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.

4. Accordingly, the type of discharge directed and the reasons for separation appear to be appropriate. Therefore, the Board determined that the applicant is not entitled to an honorable discharge or reinstatement in the Army.

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

TSK____ WDP____ FCJ_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2003085944
SUFFIX
RECON
DATE BOARDED	20030812
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	19780526
DISCHARGE AUTHORITY	AR 635-200 Chapter 10
DISCHARGE REASON	For the good of the service
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.0200
2.	123.0800
3.
4.
5.
6.