MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        


                  BOARD DATE: 23 September 2003
                  DOCKET NUMBER: AR2003090279

         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:

Ms. Jennifer L. Prater		Chairperson
Mr. Arthur A. Omartian		Member
Mr. Patrick H. McGann		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 undesirable discharge be upgraded to honorable.

APPLICANT STATES: In effect, that he forged his parent's signature to enlist at the age of 17 and left for the Army without telling his parents. He did not tell his parents until he returned from basic training. He goes on to state that after completing his training he was sent to Fort Sill, Oklahoma and then to Germany. Sometime later he had an altercation with one of his roommate's friends and had to defend himself. His lawyer told him that if he requested a discharge and told anyone who asked that he was not coerced, he could go home. By this time he had become depressed and homesick, not to mention that he was separated from his wife, and being young and unable to handle an adult situation, he took the easy way out. He continues by stating that he encountered many difficult times getting good jobs and finally changed the way he filled out job applications. He further states that he went back to high school and graduated with honors. He is a deacon in one of the largest ministries on the East Coast, but cannot discuss his service in the Army with his family or hope to be buried with military honors.

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

He enlisted with parental consent in Baltimore, Maryland, on 1 March 1974, for a period of 3 years and training as an equipment repair parts specialist. He was transferred to Fort Knox, Kentucky to undergo his basic combat training (BCT).

On 3 April 1974, nonjudicial punishment (NJP) was imposed against him for striking another soldier in the face with his fist. His punishment consisted of a forfeiture of pay and extra duty.

He completed his BCT and was transferred to Fort Lee, Virginia, to undergo his advanced individual training (AIT). Upon completion of his AIT he was transferred to Fort Sill, Oklahoma, on 16 October 1974. He was advanced to the pay grade of E-3 on 11 February 1975.

On 11 April 1975, NJP was imposed against him for failure to go to his place of duty. His punishment consisted of a forfeiture of pay and extra duty.

On 6 May 1975, NJP was imposed against him for failure to go to his place of duty. His punishment consisted of a reduction to the pay grade of E-3 (suspended for 30 days), a forfeiture of pay (suspended for 30 days) and extra duty. On 19 May 1975, the commander vacated the suspended punishments.

On 9 June 1975, NJP was again imposed against the applicant for failure to go to his place of duty. His punishment consisted of a forfeiture of pay and extra duty.


On 20 August 1975, the applicant was transferred to a maintenance battalion in Furth, Germany. He was advanced to the pay grade of E-3 on 1 November 1975.

On 20 November 1975, NJP was imposed against him for failure to go to his place of duty. His punishment consisted of a reduction to the pay grade of E-2 (suspended for 90 days), a forfeiture of pay (suspended for 90 days) and extra duty. On 8 December 1975, the commander vacated the suspended portion of his punishment.

On 20 December 1975, charges were preferred against the applicant for cutting a soldier with a razor and striking another soldier with a pipe stand.

On 7 January 1975, 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 not to submit a statement in his own behalf.

The appropriate authority (a major general) approved the request for discharge on 9 January 1975 and directed that he be issued an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on 26 January 1975, 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 10 days of total active service.

On 21 January 1980, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge to honorable. He contended at that time that his discharge was unjust because he was defending himself from three other men and he was simply quicker than they were. He also contended that he was misled by his defense attorney and did not know that he was going to get an undesirable discharge until he received it and that up until that time he had a good record of military service. He went on to state that he was married with three children and was a responsible citizen in his community, a property owner and taxpayer. He requested and was granted a personal appearance before the ADRB, on 17 April 1984; however, he failed to appear as scheduled and his application was processed based on a review of his records. The ADRB determined that he had been properly and equitably discharged and voted unanimously to deny his request.

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 was and still 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 the seriousness of his misconduct as well as his otherwise undistinguished record of service during such a short period of time.

4. The Board has noted the applicant’s contentions and while the Board commends him for his post-service accomplishments, the Board finds that they are not sufficiently mitigating to warrant relief under the circumstances. The applicant's misconduct began as early as BCT and continued until his discharge. The discharge he received properly characterizes his 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

__jlp ____ __ao____ ___pm __ DENY APPLICATION

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

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INDEX

CASE ID	AR2003090279
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/09/23
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1975/01/26
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.