MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        


                  BOARD DATE: 4 November 2003
                  DOCKET NUMBER: AR2003088063

         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. Beverly A. Young		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Ms. Gail J. Wire		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: In effect, that his under other than honorable conditions discharge (UOTHC) be upgraded.

APPLICANT STATES: That he requested to be discharged from the service due to circumstances in which he was not solely responsible. He stated that he was not the owner of the vehicle and he did not know that there were drugs in the vehicle. The applicant did not submit any documents in support of his application.

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

The applicant entered active duty on 6 January 1977. He completed basic combat training at Fort Knox, Kentucky. He was reassigned to the U.S. Army Missile Materiel Readiness Command at Redstone Arsenal, Alabama for advanced individual training.

The applicant's personnel records contain a DD Form 173 (Joint Message Form) dated May 1977, Subject: Criminal Investigative Division (CID) Report - Initial. This message stated that the applicant was apprehended on 27 May 1977 in the possession of a stolen vehicle. This message also stated he was interviewed and furnished a written statement admitting to the theft of the vehicle.

On 10 June 1977, charges were preferred against the applicant for stealing the vehicle of another soldier of a value of about $200.00.

On 13 June 1977, the applicant consulted with legal counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10. In doing so, he admitted guilt to the offense charged and acknowledged that he might encounter substantial prejudice in civilian life and that he might be ineligible for many or all Army benefits administered by the Veterans Affairs if an UOTHC was issued. The applicant did not submit statements in his own behalf.

The applicant's unit commander recommended approval with a UOTHC Certificate. The commander stated that the applicant's pattern of behavior had a detrimental effect on the morale and discipline of the unit.

The intermediate commander also recommended approval with a UOTHC Certificate. The intermediate commander stated that the applicant was attached to the United States Army Missile Materiel Readiness Command on 27 May 1977 following his apprehension by the local CID for suspected larceny. The intermediate commander also stated that, at the time of the applicant's apprehension, the applicant was in permanent change of station status to Fort Gordon, Georgia subsequent to his being dismissed from the Hawk Missile Launcher Repairman Course due to academic failure.

The separation authority approved the applicant’s request for discharge for the good of the service on 17 June 1977 and directed issuance of a UOTHC discharge.

Accordingly, the applicant was discharged on 8 July 1977 under the provisions of Army Regulation 635-200, chapter 10 for the good of the service – in lieu of trial by court-martial. He had completed 6 months and 3 days of active military service.

There is no indication that the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

Army Regulation 635-200, paragraph 3-7, provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the soldier’s separation specifically allows such characterization.

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 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.

3. There is no indication of procedural errors which would tend to jeopardize his rights or that his request for a chapter 10 discharge was made under coercion or duress.

4. The Board noted the contentions submitted by the applicant. However, the evidence of record shows that during a CID investigation, the applicant provided a written statement in which he admitted to the theft of a stolen vehicle.

5. The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

6. Based on the foregoing, the Board has determined that there is no apparent error, injustice or inequity on which to base recharacterization of the applicant's discharge.

7. 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

FNE_____ GJW_____ AU______ DENY APPLICATION

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

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INDEX

CASE ID	AR2003088063
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20031104
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	19770708
DISCHARGE AUTHORITY	AR635-200, chapter 10
DISCHARGE REASON	For the Good of the Service-In Lieu of Trial by Court-Martial
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	110.0200
2.
3.
4.
5.
6.