MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 15 July 2003
         DOCKET NUMBER: AR2002082430

         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. Richard P. Nelson		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Ms Margaret V. Thompson.		Member
Mr. Eric N. Andersen		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 to honorable.

APPLICANT STATES: That he made mistakes he now regrets. He further states that he just recently became aware that he could request correction of his military records.

COUNSEL CONTENDS: Counsel invites the Board’s attention to the contention raised by the applicant on his DD Form 149 (Application for Correction of Military Records), in which the applicant opines that his submission of the DD Form 149, in conjunction with the official Army records, advance the applicant’s contentions and reflect the probative facts needed for equitable review. Accordingly, counsel rests on the evidence of record.

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

The applicant enlisted in the Army on 2 November 1964 for a period of 3 years. He was trained in Military Occupational Specialty (MOS) 91B, Medical Corpsman. On 9 November 1965, the applicant reenlisted for a period of 5 years, eventually changing career fields to MOS 64B, Heavy Truck Driver. The applicant served in various assignments, to include tours of duty in Korea and Vietnam.

On 9 February 1965, nonjudicial punishment was imposed against the applicant for stealing $20.00 from another soldier in his unit. His punishment consisted of forfeiture of $18.00 and 14 days extra duty.

On 1 February 1966, nonjudicial punishment was imposed against the applicant for absenting himself, without authority, from his place of duty from 2400 hours, 30 January 1966 until on or about 0830 hours, 31 January 1966. His punishment consisted of forfeiture of $15.00 per month for one month and restriction to the confines of Camp Irwin, Korea for 14 days.

On 22 June 1966, nonjudicial punishment was imposed against the applicant for absenting himself, without authority, from his unit on 19 June 1966. His punishment consisted of restriction to the limits of Camp Irwin, Korea for 11 days, reduction in grade to Private First Class (E-3), and extra duty for 11 days.

On 3 October 1966 nonjudicial punishment was imposed against the applicant for absenting himself, without authority, from his unit from 19 August 1966 until 8 September 1966. His punishment consisted of reduction in grade from PFC
E-3 to PVT E-2, suspended for 6 months, and forfeiture of $20.00 per month for a period of 2 months.

On 4 August 1967 nonjudicial punishment was imposed against the applicant for absenting himself, without authority, from his unit from 26 June 1967 until 12 July 1967. His punishment consisted of forfeiture of $39.00 and restriction to the company area for 7 days.

On 8 January 1969, the applicant was convicted by Special Court-Martial of Absent Without Leave from on or about 12 August 1968 until on or about 4 December 1968. Sentence consisted of reduction in grade to PVT E-1, confinement at hard labor for 3 months (confinement at hard labor suspended for 3 months) and forfeiture of $60.00 per month for 3 months was adjudged on 8 January 1969 and approved on 9 January 1969.

On 18 March 1970, court-martial charges were preferred against the applicant for violation of Article 128 of the Uniform Code of Military Justice for assaulting a fellow member of his unit by shooting him with a dangerous weapon likely to produce bodily harm, to wit: a .45 caliber pistol. Trial by special court-martial was recommended.

On 31 March 1970, after consulting with counsel, the applicant submitted a request for discharge for the good of the service 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; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all benefits administered by the Department of Veterans Affairs; and that he may be deprived of his rights and benefits as a veteran under both Federal and State law. He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable discharge. Additionally, he elected not to submit a statement in his own behalf.

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

On 29 May 1983, the separation authority approved the applicant’s request for discharge and directed that he be discharged for the good of the service under other than honorable conditions and furnished an Undesirable Discharge Certificate.

Accordingly, the applicant was discharged under other than honorable conditions on 16 June 1970 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of court-martial. He had served exactly 5 years of total active service.

There is no indication in the available records to show that the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

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. The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt. 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.

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 Board noted that court-martial charges were properly preferred against the applicant.

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.

3. Considering all the facts of the case, the type of discharge directed and the reasons for separation were appropriate.

4. The Board noted the applicant’s statement that he made mistakes he now regrets. However, the Board also noted that the applicant voluntarily requested separation from the Army to avoid trial by court-martial. In doing so, he admitted guilt to the stipulated offense. Additionally, the Board noted that it was the applicant that requested a discharge to avoid the possibility of a punitive discharge and having a felony conviction on his records. There is no indication that the request was made under coercion or duress.

5. The Board considered the applicant’s entire record of service. There is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition. The Board further noted the applicant’s less than distinguished record of service prior to the offense for which court-martial charges were preferred.

6. The Board is convinced that the reason for discharge and the characterization of service were both proper and equitable. Further, the Board determined that the quality of the applicant’s service did not meet the standards of acceptable conduct and performance expected of Army personnel; therefore, the applicant is not entitled to an upgrade of his discharge under other than honorable conditions to honorable.

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.

8. 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

____mvt _ ___fne__ ___ena___ DENY APPLICATION

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

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INDEX

CASE ID	AR2003084297
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030715
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE
DISCHARGE AUTHORITY	AR 635-200
DISCHARGE REASON	FOR THE GOOD OF THE SERVICE
BOARD DECISION	DENY
REVIEW AUTHORITY	1124
ISSUES 1.	110.0000
2.
3.
4.
5.
6.