RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:                              20 DEC 2005
      DOCKET NUMBER:              AR20050004544


      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. Jessie B. Strickland          |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. James Hise                    |     |Chairperson          |
|     |Mr. Ronald Blakely                |     |Member               |
|     |Ms. Jeanette McCants              |     |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, in effect, that his honorable discharge be
voided and that he be retired by length of service in the pay grade of E-6
with entitlement to all back pay and allowances from the date of his unjust
discharge.

2.  The applicant states, in effect, that he was unjustly discharged
because of racial discrimination that resulted in fabricated charges being
made against him.  Accordingly, he deserves to be retired in the pay grade
of E-6 with entitlement to full retired pay.

3.  The applicant provides a 2-page statement of his position in regards to
his request, a copy of his request for a Chapter 10 discharge, a copy of
the Article 32 investigation, copies of email recommendations, and copies
of the Army Discharge Review Board decisions in his case.

CONSIDERATION OF EVIDENCE:

1.  He enlisted in the Regular Army on 17 September 1991 for a period of 6
years and training as an eye specialist.  He completed his basic combat
training at Fort Knox, Kentucky, and attended advanced individual training
at Fort Sam Houston, Texas, Fort Jackson, South Carolina, and Fort Lee,
Virginia.

2.  He was transferred to Germany on 8 August 1997 and was promoted to the
pay grade of E-5 on 2 October 1998.  He served there until 3 September
2000, when he was transferred to Dugway Proving Ground, Utah.  He
reenlisted on 13 March 2001 for a period of 5 years and assignment to
Europe.

3.  He was transferred back to Germany on 19 July 2001 and 10 March 2003,
charges were preferred against the applicant for assault and unlawful
entry.

4.  On 19 May 2003, after consulting with defense counsel, 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 understood the charges
that had been preferred against him, 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
declined to submit a statement or explanation in his own behalf.

5.  The appropriate authority approved his request and directed that he be
discharged under other than honorable conditions.

6.  Accordingly, he was discharged under other than honorable conditions on
26 May 2003, under the provisions of Army Regulation 635-200, chapter 10,
in lieu of trial by court-martial.  He had served 11 years, 8 months, and
10 days of total active service.

7.  On 17 August 2003, the applicant applied to the Army Discharge Review
Board (ADRB) for an upgrade of his discharge.  The ADRB determined at that
time that his discharge was both proper and equitable and voted unanimously
to deny his request on 28 April 2004.

8.  The applicant again applied to the ADRB on 1 June 2004 for an upgrade
of his discharge and was granted a personal appearance before that board on
6 December 2004 in which he was allowed to have witnesses testify in his
behalf. The ADRB determined at that time that while his discharge was
proper, it was inequitable as to characterization and reason.  The ADRB
determined that the applicant’s misconduct was mitigated by the
circumstances surrounding the discharge and by service of sufficient merit
to overcome the discrediting entries in his records.  The ADRB voted
unanimously to upgrade his service to fully honorable and to change the
reason for discharge to Secretarial Authority on
10 December 2004.  Additionally, his Reentry (RE) Code was changed to “1.”

9.  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 is normally considered
appropriate.


DISCUSSION AND CONCLUSIONS:

1.  Notwithstanding the actions of the ADRB to upgrade his discharge, 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.

2.  Accordingly, the type of discharge directed and the reasons therefore
were appropriate under the circumstances.

3.  Although the applicant would have the Board to believe that the ADRB
upgraded his discharge to honorable because he was unjustly discharged,
such is not the case.  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.

4.  The applicant’s contention that his discharge was racially motivated
has been noted.  However, the applicant has failed to show through the
evidence submitted with his application or the evidence of record that such
was the case.

5.  The applicant’s contention that he should be entitled to full
retirement as an  E-6 with entitlement to all back pay and allowances has
also been noted and found to be without merit.  The highest grade he
attained was the pay grade of
E-5 and even if he had not been discharged in 2003 as he requested, he
would still not be eligible for retirement by reason of length of service.

6.  By virtue of the actions of the ADRB, the applicant is eligible to
enlist again if he so desires and the needs of the Army so dictates.
However, there is no basis for this Board to grant him retroactive service,
benefits, or entitlements that he did not earn and is not entitled to
receive.  To do so would afford him benefits not afforded to others who
request discharge in lieu of trial by court-martial.

7.  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

____JH__  ____RB _  ____JM _  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.





            _____James Hise___________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050004544                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051220                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19910917                                |
|DISCHARGE AUTHORITY     |AR 635-200, CH 10                       |
|DISCHARGE REASON        |ILOCM                                   |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |338/RET                                 |
|1.136.0000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]