MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 14 January 2003
         DOCKET NUMBER: AR2002074065

         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. Luis Almodova		Analyst

The following members, a quorum, were present:

Ms. Margaret K. Patterson		Chairperson
Ms. Jennifer L. Prater		Member
Ms. Mae M. Bullock		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)

---

APPLICANT REQUESTS: In effect that his undesirable discharge be upgraded to honorable.

APPLICANT STATES: The applicant provided neither an argument nor evidence to support an upgrade of his Undesirable Discharge. The applicant did however indicated in the appropriate space on the DD Form 149, Application for Correction of Military Record, that he desired to appear before the Board in Washington, D.C.

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

The applicant enlisted in the Regular Army for 3 years on 30 September 1966.

Following completion of basic combat training at Fort Leonard Wood, Missouri, the applicant was assigned to Fort Jackson, South Carolina, to undergo advanced individual training in the military occupational specialty 76A, Supply Clerk.

On completion of all training, he was reassigned to Okinawa. He arrived in Okinawa on 27 February 1967 and was assigned to the 339^th Supply Company as a Supply Clerk.

On 2 April 1967, the applicant received an Article 15 under the provisions of the Uniform Code of Military Justice (UCMJ) for being disorderly and for striking another soldier. As his punishment, he was restricted to the company area and such other places as his official duties required for 7 days and to perform extra duties for 7 days.

The applicant remained with the 339^th Supply Company until 24 August 1967 when he was reassigned to the Republic of Vietnam (RVN). He arrived in the RVN on 31 October 1967 and was assigned to Headquarters and Headquarters Company, 5^th Battalion, 60^th Infantry Regiment of the 9^th Infantry Division. On
22 April 1968, the applicant was reassigned to D Company, 58^th Infantry,
93^rd Military Police Battalion.

The applicant’s military records show that he was honorably discharged for the purpose of immediate reenlistment on 7 July 1968. On the date of his reenlistment, he had completed 1 year, 9 months and 8 days active Federal service with no lost time.

On 25 December 1968, a bar to reenlistment was imposed on the applicant under the provisions of Army Regulation 601-280, Section VIII. According to the certificate on file in his service personnel records, the applicant had a record of habitual misconduct which was evidenced by four Articles 15 for the following violations: striking a fellow soldier, failing to secure all ammunition, and two violations of sleeping on his post. The certificate was signed by his unit commander who added that he had counseled with the applicant on numerous occasions and had advised him of the adverse consequences that might ensue from the bar to reenlistment and other similar personnel actions.

The Articles 15 referred to in the paragraph above are not on file in the applicant's service personnel records; however, according to Item 33 (Appointments and Reductions) of the applicant's DA Form 20, Personnel Qualification Record, the applicant was promoted to the rank and pay grade Specialist 4 on 1 January 1968. On 21 December 1968 he was reduced to the rank and pay grade, Private First Class (PFC), E-3 and on 24 December 1968 he was reduced to the rank and pay grade Private, E-2.

On 9 February 1969, action was initiated to remove the bar to reenlistment that had been imposed on the applicant. Approval for the bar's removal, to be effective that same date, was given on 21 March 1969.

On 28 February 1969, the applicant regained promotion to Private First Class. On 26 July 1969, he was promoted to Specialist 4 and on 12 January 1970 he was promoted to Sergeant, pay grade E-5.

The applicant departed from the RVN on 20 January 1970. On his return to the Continental United States, he was assigned to Fort Riley, Kansas. It was at that location that the applicant once again reestablished a pattern of misconduct.

Item 44 (Time Lost Under Section 972, Title 10, United States Code) of the applicant's DA Form 20, Enlisted Qualification Record, reflects the following periods of lost time: from 11 August 1970 to 28 August 1970 /18 days/ AWOL (absent without leave); from 6 July 1972 to 2 August 1972 /28 days/ AWOL;
17 August 1972 to 19 August 1972 /3 days/ Confined by civil authorities; and from 17 October 1972 to 22 October 1972 /6 days/ AWOL.

On 9 September 1970, the applicant received an Article 15 under the provisions of the UCMJ for having been AWOL from 0001 hours, 11 August 1970 until on or about 1400 hours, 29 August 1970. The punishment imposed was reduction in rank and pay grade to Specialist 4, E-4, and forfeiture of $75.00 per month for two months.

On 20 September 1972, the applicant received a summary court-martial. He was found guilty of being AWOL from 6 July until 3 August 1972. The applicant was found not guilty of a second AWOL charge (AWOL from 17 August 1972 until
18 August 1972). The applicant was sentenced to reduction to Private, pay grade E-2, to forfeit $100.00, and to perform 10 days hard labor without confinement. The sentence was approved and ordered executed on the same date.

The applicant’s record is void of facts and circumstances concerning the events that led to his discharge from the Army. The Board noted that the applicant’s record contains a properly constituted DD Form 214, Certificate of Release or Discharge from Active Duty, which was authenticated by the applicant. This document identifies the reason and characterization of the discharge and the Board presumed Government regularity in the discharge process.

The applicant was discharged on 26 October 1972 under the provisions of Army Regulation 635-206, Section VI, Paragraph 37, for conviction by a civil court. His service was characterized as under other than honorable conditions and he was provided an Undesirable Discharge Certificate. At the time of his discharge, he had 4 years, 1 month and 24 days creditable active Federal service, on his present enlistment contract, and 55 days lost due to absence without leave and confinement by civil authorities. The applicant had a total of 5 years 11 months and 2 days, combined active Federal service, considering his enlistment and his reenlistment.

On 5 May 1977, the applicant applied to the Department of Defense Discharge Review Program (Special), Army Discharge Review Board (ADRB) for an upgrade of his discharge. The ADRB notified the applicant on 6 July 1977, that his request for an upgrade of his Undesirable Discharge had been denied.

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

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 provided no argument or evidence to support his request for an upgrade of his Undesirable Discharge.

2. The applicant has not alleged error or injustice in the discharge process. The Board is satisfied that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

3. The Board considered the applicant’s entire record of service. The Board is convinced that the reason for discharge and the characterization of service were both proper and equitable. The applicant's discharge was appropriate because the quality of service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. Through his misconduct, the applicant diminished the quality of his service below that meriting an Honorable Discharge; therefore, the applicant is not entitled to an upgrade of his Undesirable Discharge.

4. 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

__mkp___ __jlp___ __mmb___ DENY APPLICATION

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

---

INDEX

CASE ID	AR2002074065
SUFFIX
RECON
DATE BOARDED	20030114
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	19721026
DISCHARGE AUTHORITY	AR 635-206, PARAGRAPH 37, SECTION VI
DISCHARGE REASON	A61.00
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	144.0000
2.	144.0136
3.	144.6100
4.
5.
6.