MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 10 July 2003
         DOCKET NUMBER: AR2003085076

         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. Gerard W. Schwartz		Analyst

The following members, a quorum, were present:

Mr. Roger W. Abel		Chairperson
Ms. Barbara J. Ellis		Member
Mr. Larry C. Bergquist		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 his undesirable discharge be upgraded to honorable.

APPLICANT STATES: In effect, that his overall service was deserving of a honorable discharge.

The applicant provided a signature page of his request for the good of the service in lieu of trial by court-martial, a certificate and an Oklahoma certificate of death.

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

On 21 April 1970, the applicant enlisted in the Regular Army for a period of three years. He completed the required training and was awarded military occupational specialty 94B (Cook). The highest pay grade he achieved was E-3.

Special court-martial order number 131, dated 28 October 1970, reflects that the applicant was found guilty of unlawfully striking an enlisted member and a Non Commissioned Officer while attending Advanced Individual Training (AIT). His imposed punishment was hard labor for five months and forfeiture of $85.00 per month for five months. The applicant served part of his sentence at Fort Belvoir, Virginia and completed retraining at the Fort Riley Correctional Training
Facility (CTF).

The applicant was later assigned to Fort Sill, Oklahoma on 23 February 1971. On 2 October 1971 he reported to the 239th Aviation Company in Korea.

On 19 January 1972, court martial charges were preferred against the applicant for striking an enlisted soldier in the face with a spatula (cooking utensil) and thereby intentionally inflicting grievous bodily harm upon him, to wit: a deep cut.

On 10 February 1972, the applicant consulted with legal counsel and 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 was afforded the opportunity to submit statements in his behalf, but he declined to do so.

On 1 March 1972, the appropriate authority approved the applicant's request for discharge in lieu of trial by court-martial and directed the issuance of an Undesirable Discharge Certificate. On 14 March 1972, the applicant was discharged, in the pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with an Undesirable Discharge Certificate. He completed 1 year, 7 months and 13 days of creditable service and had 121 days of lost time.
On 29 August 1979 the Army Discharge Review Board heard the applicant's appeal during a Personal Hearing Exam. The Board determined that he was properly and equitably discharged with an under other than honorable conditions 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. A discharge under other than honorable conditions is normally considered appropriate. However, at the time of the applicant's separation the regulation provided for the issuance of an Undesirable Discharge Certificate.

Army Regulation 635-200 provides that an honorable discharge is a separation with honor. Issuance of an honorable discharge is predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration to the member's age, length of service and general aptitude. Where a member has served faithfully and performed to the best of his ability, an honorable discharge certificate should be furnished.

Army Regulation 635-200, 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 considered the applicant's request to upgrade his discharge to under honorable conditions.

2. The Board reviewed the applicant's service records, which included one special court martial for assault and court-martial charges for a second incident of assault.

3. The applicant voluntarily requested discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200 in lieu of trial by court-martial.

4. The applicant acknowledged his guilt of the court-martial charge by submitting a request for discharge. He was advised of the implications attached to the discharge. He acknowledged in his own hand that he understood the possible effects of an under other than honorable conditions discharge, that he would be deprived of many or all Army benefits, and that he may be ineligible for many or all benefits as a veteran under both Federal and state law.

5. Based on the applicant's record of indiscipline, his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, the applicant did not meet the criteria for an honorable discharge. The applicant's service was not satisfactory; therefore, he did not meet the criteria for a general discharge.

6. The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural error which would tend to jeopardizes his rights. There is no indication that the request was made under coercion or duress. The type of discharge and the reasons therefore were appropriate considering all the facts of this case.

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

__RWA__ ___BJE _ ___LCB__ DENY APPLICATION

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

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INDEX

CASE ID	AR2003085076
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030710
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	19720314
DISCHARGE AUTHORITY	AR635-200
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	110.0200.0000
2.
3.
4.
5.
6.