MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 3 July 2003
         DOCKET NUMBER: AR2003084295

         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
Mrs. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor		Chairperson
Ms. Kathleen A. Newman		Member
Mr. Patrick H. McGann		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 undesirable discharge be upgraded to a general or honorable discharge.

APPLICANT STATES: That he got hooked on heroin while in Vietnam and it clouded his judgment and caused him to do things he would never have done when straight. He got caught doing some of those things and was going to be court-martialed. His military counsel told him he could request discharge in lieu of court-martial. His counsel also told him he could then request an upgrade in six months and it would be automatically upgraded to general. He took his counsel's word as the truth, only to find out in 1979 that it was not true. He realizes the things he did were wrong but that is no excuse to provide him with faulty counsel. If his counsel had not told him he could get his discharge upgraded, he might have done better in a court-martial than getting an undesirable discharge. He provides the Army Discharge Review Board (ADRB) packet and his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) as supporting evidence.

COUNSEL STATES: That the Board's attention is invited to the injustices raised by the applicant.

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

He was inducted into the Army on 14 May 1970. He completed basic combat training and advanced individual training and was awarded military occupational specialty 67N (UH-1 Helicopter Repairman).

On 18 November 1970, the applicant accepted nonjudicial punishment under Article 15,Uniform Code of Military Justice for being absent without leave (AWOL) from his unit, the U. S. Army Overseas Replacement Station, Fort Lewis, WA, from 10 to on or about 18 November 1970.

The applicant arrived in Vietnam on or about 1 December 1970.

On 26 June 1971, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for failing to go to formation.

On 25 August 1971, court-martial charges were preferred against the applicant charging him with violating a lawful regulation by being in a designated off limits area without proper authorization; with wrongfully appropriating a 3/4 ton vehicle, property of the u. S. Government; and wrongfully possessing heroin. On 10 September 1971, the applicant was additionally charged with stealing a portable television, the private property of another soldier.

On or about 25 September 1971, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200, chapter 10 for the good of the service in lieu of trial by court-martial. The applicant was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and Veterans Administration benefits. He submitted no statement in his own behalf.

On 18 October 1971, the appropriate authority approved the applicant’s request and directed he receive an Undesirable Discharge Certificate.

On 27 October 1971, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with an undesirable discharge under other than honorable conditions. He had completed 1 year, 5 months, and 6 days of creditable active service and had 8 days of lost time.

On 12 October 1979, the ADRB denied the applicant’s request for an upgraded discharge.

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. A discharge under other than honorable conditions is normally considered appropriate.

Army Regulation 635-200 governs the separation of enlisted personnel. In pertinent part, it states that an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the soldier’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. Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s). An honorable discharge may be furnished when disqualifying entries in the soldier’s military record are outweighed by subsequent honest and faithful service over a greater period of time during the current term of service. It is the pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service to be awarded. A general discharge is a separation from the Army under honorable conditions. It is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

The U. S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges. Each case is decided on its own merits when an applicant requests a change in discharge. Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

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. 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.

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. There is no indication that the request was made under coercion or duress.

3. There is nothing in writing to indicate the applicant could receive an automatic upgrade of his discharge after a certain length of time. The applicant chose to request an administrative discharge rather than risk the consequences of a court-martial, which could have included a punitive, rather than an administrative, 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

__rvo___ __kan___ __phm___ DENY APPLICATION

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

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INDEX

CASE ID	AR2003084295
SUFFIX
RECON
DATE BOARDED	20030703
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1971/10/27
DISCHARGE AUTHORITY	AR 635-200, ch 10
DISCHARGE REASON	A70.00
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	110.00
2.
3.
4.
5.
6.