MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 27 September 2001
         DOCKET NUMBER: AR2001060619

         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. Raymond V. O’Connor		Chairperson
Mr. Eric N. Andersen		Member
Mr. Thomas E. O’Shaughnessy		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.

APPLICANT STATES: In effect, that he was not afforded the opportunity for counsel. He contends that he did not know what to do and that he did not understand. In support of his application, he submits eight character reference letters.

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

The applicant enlisted on 20 January 1970 for a period of 3 years and trained as a duty soldier.

On 16 June 1970 nonjudicial punishment (NJP) was imposed against the applicant for failing to obey a lawful order. His punishment consisted of a reduction to E-1 (suspended for 30 days). The suspension of the punishment was vacated on 26 June 1970.

On 19 October 1970 NJP was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty. His punishment consisted of a forfeiture of $25 pay for one month (suspended for 30 days).

On 28 January 1971 NJP was imposed against the applicant for being absent from his assigned place of duty. His punishment consisted of a reduction to E-2 and extra duty.

On 13 April 1971 NJP was imposed against the applicant for being absent without leave (AWOL) from 1 April 1971 to 13 April 1971. His punishment consisted of a forfeiture of $65 pay per month for two months and a reduction to E-2.

The applicant was transferred to Vietnam on 15 April 1971.

On 24 July 1971 NJP was imposed against the applicant for disobeying two lawful orders from his superior noncommissioned officer and using provoking words towards this superior noncommissioned officer. His punishment consisted of a forfeiture of $30 pay for one month and a reduction to E-2 (suspended for
30 days).

On 30 August 1971 charges were preferred against the applicant for failing to go to morning formation on two occasions, assaulting a private first class by swinging his fist at him and committing an assault upon the private first class by pointing an M-16 rifle at him, a dangerous weapon with a means likely to produce grievous bodily harm. Trial by special court-martial was recommended.
On 25 September 1971, after consulting with counsel, the applicant submitted a request for discharge for the good of the service (in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge) under the provisions of Army Regulation 635-200, chapter 10. He indicated in his request that he understood he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate; and that he may be deprived of many or all Army benefits as a veteran under both Federal and state law. He also acknowledged that he may expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge. The applicant elected not to submit a statement in his own behalf.

Paragraph five of the applicant’s request for discharge for the good of the service states “Prior to completing this form, I have been afforded the opportunity to consult with appointed counsel, or military counsel of my own choice, if he is reasonably available, or civilian counsel, at my own expense. I (have consulted with counsel, [counsel’s name], who has fully advised me in this matter on
25 September 1971).”

The intermediate commanders recommended that the applicant’s request for discharge be approved and that he be furnished an undesirable discharge.

On 16 October 1971 the separation authority approved the applicant’s request for discharge and directed that he be furnished an undesirable discharge.

The applicant was transferred back to the United States on 1 November 1971.

Accordingly, the applicant was discharged under other than honorable conditions on 9 November 1971 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of court-martial. He had served 1 year,
9 months and 9 days of total active service and had 13 days lost due to AWOL.

On 6 July 1977 the Army Discharge Review Board (ADRB) reviewed the applicant’s case under the Special Discharge Review Program and denied his request for a discharge upgrade to honorable.

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.

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. Whenever there is doubt, it is to be resolved in favor of the individual.

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. The applicant’s contention that he was not afforded the opportunity for counsel is not supported by the evidence of record. Evidence of record shows that on 25 September 1971 the applicant was afforded the opportunity to consult with counsel, that he consulted with counsel and that counsel fully advised him on the effects of his request for discharge.

2. The Board reviewed the applicant’s record of service which included five NJP’s and determined that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, the applicant is not entitled to an honorable discharge.

3. The Board also determined that the seriousness of the assault offenses for which special court-martial charges had been preferred against the applicant are too serious to warrant relief in the form of a general discharge.

4. 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.

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

6. 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.

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

RVO____ ENA_____ TEO____ DENY APPLICATION

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

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INDEX

CASE ID	AR2001060619
SUFFIX
RECON
DATE BOARDED	20010927
TYPE OF DISCHARGE	(UOTHC)
DATE OF DISCHARGE	19711109
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.
3.
4.
5.
6.