RECORD OF PROCEEDINGS


      IN THE CASE OF:    .


      BOARD DATE:        30 August 2005
      DOCKET NUMBER:  AR20040010086


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. G. E. Vandenberg              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Paul M. Smith                 |     |Chairperson          |
|     |Ms. Yolanda Maldonado             |     |Member               |
|     |Mr. Leonard G. Hassell            |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his discharge be upgraded.

2.  The applicant states the act that led to his discharge was an
instinctive reaction to a verbal assault awakening him from a deep sleep.
He states that he knows that it was wrong for him to have been consuming
alcohol underage and that he acted inappropriately.

3.  The applicant provides no supporting documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted under the Delayed Entry
Program (DEP) on 10 February 2000, entered active duty on 19 March 2000,
completed training, and was awarded the military occupational specialty
(MOS) 88M (Motor Transport Operator).

2.  In December 2002, a summary court-martial found the applicant guilty of
disrespect towards a noncommissioned officer (NCO) and assault upon an NCO.
This incident occurred when the applicant was awakened by an NCO he did not
recognize and ordered to assume a watch that the applicant alleges he had
no knowledge of.  The applicant stated his striking the NCO, as he was
coming out of a deep sleep, was an instinctive reaction to the NCO's verbal
assault not a deliberate act.

3.  The applicant served in Iraq for the period 28 February 2003 through
10 September 2003.

4.  The applicant's record contains three counseling statements for three
separate incidents of insubordinate conduct toward an NCO and provoking
speech or gestures; dated 6 July 2003, 21 July 2003, and 23 July 2003.

5.  On 14 August 2003 the applicant was charged with disobeying a lawful
order from an NCO and disrespect in deportment toward an NCO.

6.  On 15 August 2003, after consulting with counsel and being advised of
his rights and options, the applicant submitted a formal request for
discharge for the good of the service in lieu of trial by court-martial
under the provisions of Army Regulation 635-200, chapter 10.  He
acknowledged he had been advised of and understood his rights under the
Uniform Code of Military Justice, that he could receive an UOTHC discharge
which would deprive him of many or all of his benefits as a veteran, that
he could expect to experience substantial prejudice in civilian life if he
received an UOTHC discharge, and that there is no automatic upgrading or
review of a less than honorable discharge.

7.  On 28 August 2003, the separation authority approved the applicant's
request and directed he be reduced to the lowest enlisted grade and be
discharged with an UOTHC.

8.  The applicant was discharged, under the provisions of Army Regulation
635-200, chapter 10, for the good of the service in lieu of trial by court-
martial, on 26 September 2003 with an UOTHC.  He had 3 years, 6 months, and
8 days of creditable service with no lost time.

9.  The applicant submitted a request to the Army Discharge Review Board
(ADRB) to have his discharge upgraded.  At the time of that review, the
applicant indicated he had not been made aware of a change in duty
assignments due to being in classes at the time the change was promulgated.
 He indicated that when an NCO came into his room yelling at him to get out
of bed and assume his watch, he struck the NCO as he was waking up.  He
stated that he knows that this was wrong but that it was done as an
instinctive reaction not as a deliberate act.

10.  The ADRB denied the applicant's request for an upgrade on 19 November
2004.  At the time of the notification of the denial, the applicant was
advised he had the right to request a personal appearance before the ADRB.
 Since the applicant did not elect to afford himself of this option and he
had also submitted a request for an upgrade of his discharge to this Board,
the ADRB forwarded the applicant's request to this Board.

11.  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 AND CONCLUSIONS:

1.  The incident that the applicant attributes his discharge to is not in
fact the incident that led to his discharge.  The incident he describes
occurred 8 months prior to the proposed separation action and though
similar in nature, it was not the cause of the pending court-martial
charges for which he requested separation.

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.  There is no indication that the
request was made under coercion or duress.

3.  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.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__PMS__  __LGH __  __YM___  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.



                                  _         Paul M. Smith______
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040010086                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050830                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |20030926                                |
|DISCHARGE AUTHORITY     |AR 635-200, ch 10. . . . .              |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.700                                 |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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