MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 17 July 2003
         DOCKET NUMBER: AR2003084596


         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. Victoria A. Donaldson		Analyst

The following members, a quorum, were present:

Ms. Joann Langston		Chairperson
Mr. John T. Meixell		Member
Ms. Regan K. Smith		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: Reconsideration of his earlier request to the Army Board for Correction of Military Records (ABCMR) to upgrade his discharge from an undesirable discharge to a general discharge.

APPLICANT STATES: In effect, that he was placed in double jeopardy and that his punishment was too severe.

COUNSEL STATES: The Disabled American Veterans, as counsel for the applicant, supports the applicant's request for upgrade of his discharge from an undesirable discharge to a general discharge. Counsel reiterates the applicant's contentions and points out that the applicant was having marital problems and that he could not function because of the stress and emotional pain that he faced each day. Counsel further states that the applicant "loved his wife more than life itself and walked and asked for release from the military". Counsel requests that the Board consider all of the contributory factors surrounding the cases coupled with the impetuosity of his youth.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in the ABCMR's previous consideration of the applicant's case in Docket Number AR2002073442 on 8 August 2002.

The applicant submitted a self-authored statement in which he wrote that he considered the good times of his life were when he was in the Army and that he planned to make a career out of serving in the Army. The applicant also states that the bad times of his life involved his wife who put a lot if stress on him and didn’t like the Army. He requests help with his discharge, states that he is not drinking anymore, and states that he wants to get a good job and an apartment.

The applicant submitted a copy of his police records from the City of Columbia, South Carolina, Police Department which shows that he had numerous charges against him since 13 November 1986 until 19 April 2002. The charges include three instances of trespassing, eight instances of public drunkenness and one instance of Petit Larceny.

The applicant submitted an undated letter of support which states that author has known the applicant since 1980 and that the applicant is a disabled person. He further states that the applicant was trying to help himself the “best he knows how.”

The applicant submitted a 31 December 2002, letter of support which states that the author has known the applicant for over 25 years and that he was a person of moral character, an asset to the community. The author further states that the applicant helps the elderly and the youth of the community and that he is always thoughtful of others. In addition, the author states that the applicant is a hard worker and an asset to everyone who comes in contact with him.
The applicant submits a second undated letter that states that the applicant has worked part-time for the author for the past 11 years cleaning churches and residential properties. The author continues to state that the applicant on several occasions turned in money that he found while working. In addition, the author states that when he tried to pay the applicant twice for the same job, that the applicant informed him that he had already been paid. The author states that the applicant’s character, honest and dependability has been beyond reproach.

The applicant’s submissions are new evidence which will be considered by the ABCMR.

On 27 June 1973, he was punished under Article 15, Uniform Code of Military Justice, (UCMJ), for absence from his unit. His punishment included forfeiture of pay for 1 month and extra duty for 7 days.

On 9 July 1973, he was punished under Article 15, UCMJ, for absence from his appointed place of duty from 4 July to 6 July 1973. His punishment included forfeiture of pay for 1 month, extra duty for 7 days and reduction to pay grade
E-1. Reduction to pay grade E-1 was suspended for a period of 30 days.

On 16 November 1973, he was punished under Article 15, UCMJ, for absence from his appointed place of duty from 13 November to 14 November 1973. His punishment included forfeiture of pay for 1 month and extra duty for 20 days.

On 5 February 1974, he was punished under Article 15, UCMJ, for absence from his appointed place of duty. His punishment included forfeiture of pay for 1 month, restriction to billets, chapel, mess hall, and place of duty for 7 days and reduction to pay grade E-2.

On the same day, the applicant appealed the Article 15, stating that the fine and reduction were justified, but he did not feel that he should be required to live in the billets because he could not live in the barracks because his wife was sick
often and he did not have a phone, so he asked that the matter about living in the barracks be dropped. That portion of his sentence pertaining to restriction to billets, chapel, mess hall and place of duty for a period of 7 days was remitted.

On 5 February 1974, he was also tried by summary court-martial for absence from his unit from 31 January through 4 February 1974. He was found guilty and sentenced to reduction to pay grade E-1 and forfeiture of $108.00 per month for 1  month.

DD Form 214 (Report of Separation from Active Duty) shows that the applicant was separated on 3 April 1974, in pay grade E-1, under the provisions of Army Regulation 635-200, paragraph 13-5b(3) and issued an Undesirable Discharge Certificate. He was credited with 1 year, 8 months and 25 days total active service and 12 days lost time due to AWOL.

The applicant's discharge processing documents are not contained in the records available to the Board.

Army Regulation 15-185 sets forth the policy and procedures for the ABCMR. It provides that, if a request for a reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration. The staff of the Board is authorized to determine whether or not such evidence has been submitted.

Army Regulation 635-200 sets forth the policy and prescribes the procedures for administrative separation of enlisted personnel. Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier. At that time, paragraph 13-5 b (3) provided for the separation of individuals whose record evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively. When separation for unfitness was warranted a UD was 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 Board noted the applicant's contentions that he was subject to “double jeopardy.” Evidence of record in this case shows that the applicant received punishment under Article 15 or by Summary Court Martial for multiple offenses of absence over a period of nine months. There is no evidence that the applicant was tried or punished for any of these offenses more than once. The applicant's discharge processing under Army Regulation 635-200, paragraph
13-5b(3), for these offenses occurred only as a result of his unsatisfactory performance.

2. The Board noted the applicant's contentions that his punishment was "too harsh." Based on his repeated offenses, the Board determined that his discharge with an Undesirable Discharge Certificate is not too harsh.

3. There is no evidence of record or evidence presented by the applicant which indicates procedural errors which would jeopardize the applicant's rights. The type of discharge and the reason for separation were appropriate considering all of the facts surrounding this case.

4. The Board reviewed the Disabled American Veterans counsel's opinion in this case. The Board considered the contributory factors raised by counsel, specifically the applicant's age and family situation. The Board noted that the applicant was 25 years old at the time of his first unauthorized absence and that he was 27 years old at the time of his separation. Further, while the applicant's family situation was unfortunate, there is no evidence that the applicant sought assistance from his chain of command as an alternative to absenting himself from his unit.

5. The Board noted the letters of support provided by the applicant. The applicant's post service achievements were noted. However, the Board also noted that the applicant has had several recent offenses which include public drunkenness, trespassing and Petit Larceny. Therefore, relief based on post service conduct and achievement is not warranted on view of his recent offenses.

6. The Board also reviewed the applicant's record of service which included four nonjudicial punishments and one summary court-martial conviction. As a result the Board determined that his record of service was not satisfactory. Therefore the applicant is not entitled to a general discharge.

7. The Board reviewed the applicant's record of service and determined that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, he is not entitled to an honorable discharge.


8. 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 unjust. The applicant has failed to submit evidence that would satisfy this requirement.

9. The overall merits of the case, including the latest submissions and arguments, are insufficient as a basis for the Board to reverse its previous decision.

10. 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

_JL __ __JTM___ __RKS__ DENY APPLICATION



         Carl W. S. Chun

Director, Army Board for Correction
         of Military Records

---

INDEX

CASE ID	AR2003084596
SUFFIX
RECON	This applies only to ADRB
DATE BOARDED	17 July 2003
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	Deny
REVIEW AUTHORITY
ISSUES 1.	110.0200.0000
2.
3.
4.
5.
6.