MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 22 May 2003
         DOCKET NUMBER: AR2003083607

         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:

Mr. Raymond V. O'Connor, Jr.		Chairperson
Mr. Stanley Kelley		Member
Ms. Gail J. Wire		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: In effect, that the Under Other Than Honorable Conditions Discharge given his deceased son, a former service member (FSM), be upgraded to Honorable.

APPLICANT STATES: In effect, the applicant wants his son's Under Other Than Honorable Conditions Discharge upgraded so that the family may have closure. The family wants to put a plaque on his grave. The deceased FSM's father submits a copy of the FSM's death certificate in support of the application for an upgrade of the discharge.

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

The deceased FSM enlisted in the US Army Reserve on 3 November 1976 and entered active duty in the Regular Army on 1 December 1976 for 4 years.

Following completion of basic combat training at Fort Leonard Wood, Missouri, he was sent to Fort Benning, Georgia, to undergo advanced individual training in the military occupational specialty (MOS) 11C, Indirect Fire Infantryman.

The FSM served a tour of duty in the Republic of Korea. He arrived there on 12 September 1977 and returned to the United States on 6 September 1978 and assignment with C Company, 2nd Battalion, 502nd Infantry, Fort Campbell, Kentucky.

On 9 November 1979, the FSM received an Article 15 under the provisions of the Uniform Code of Military Justice (UCMJ) for failing to go, to his appointed place of duty, unit formation, at the prescribed time, at about 0700 hours, on 8 November 1979. As his punishment, he was ordered to forfeit $25.00 per month for one month and to perform extra duties for 7 days.

On 19 October 1979, the FSM became the subject of a Criminal Investigation Division (CID) Investigation. On 10 December 1979, court-martial charges were preferred against the FSM for multiple violations of Article 92 of the UCMJ, violation of a lawful regulation. On 24 January 1980, an Article 32 Investigation was convened to investigate the facts and circumstances concerning the charges that had been preferred. The investigation was concluded on 5 February 1980. The recommendation made by the investigating officer was that the FSM should be tried by special court-martial empowered to adjudge a bad conduct discharge.

The evidence of record shows that, on 8 February 1980, the FSM consulted with counsel and submitted a request for discharge from the service. The FSM submitted a statement in his own behalf. In this statement, the FSM reasoned that it would be better for him to leave the Army in this manner rather than being

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discharged as a result of court-martial. He felt that this discharge would allow him to return to school and begin life again in a trustworthy manner.

In his request for voluntary discharge, the FSM acknowledged that he understood that he could request discharge for the good of the service because charges had been preferred against him under the Uniform Code of Military Justice (UCMJ) which authorized imposition of a bad conduct or dishonorable discharge. He stated that he was making his request of his own free will and had not been subjected to coercion whatsoever by any person; that he understood he could be denied some or all veterans' benefits as a result of his discharge; that he may be deprived of rights and benefits as a veteran under both Federal and State law; and that he may encounter substantial prejudice in civilian life because of discharge Under Other Than Honorable Conditions.

On 13 February 1980, the unit commander and the FSM's chain of command recommended approval of the request and further recommended that an Under Other Than Honorable Conditions Discharge be issued. The separation approval authority approved the request on 25 February 1980 and directed that an Under Other Than Honorable Conditions discharge be issued.

The FSM was separated, in compliance with his request, on 28 February 1980. On the date of his separation, he had 3 years, 2 months, and 28 days active Federal service with no lost time. The record contains no documented acts of valor, achievement, or service warranting special recognition.

There is no evidence that the FSM applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 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 submit, at any time after the charges have been preferred, 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

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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 evidence of record shows the FSM was charged with the commission of an offense punishable with a punitive discharge under the Uniform Code of Military Justice (UCMJ).

2. The Board noted that, after consulting with defense counsel, the FSM voluntarily, and in writing, requested separation from the Army under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial. In doing so, the FSM admitted guilt to the stipulated offenses under the UCMJ.

3. The Board noted that it was the FSM who requested a discharge for the good of the service 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.

4. The Board is satisfied that all requirements of law and regulation were met and the rights of the FSM were fully protected throughout the separation process. It also noted that the characterization of service for this type of discharge is normally UOTHC and the Board believes that the FSM was aware of that before requesting discharge.

5. The Board considered the FSM's entire record of service. The Board is convinced that the reason for discharge and the characterization of service were both proper and equitable. Further, the Board has determined that the quality of the deceased FSM's service did not meet the standards of acceptable conduct and performance expected of Army personnel; therefore, the FSM is not entitled to an upgrade of his UOTHC discharge to an honorable discharge.

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.

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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___ __sk____ __gjw___ DENY APPLICATION

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

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INDEX

CASE ID	AR2003083607
SUFFIX
RECON
DATE BOARDED	20030522
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	19800228
DISCHARGE AUTHORITY	AR 635-200, Chapter 10
DISCHARGE REASON	A70.00
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	144.0000
2.	144.7000
3.
4.
5.
6.