MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 10 July 2003
         DOCKET NUMBER: AR2003085188

         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 the only time he had military representation was at his court-martial. He states that he was told he would receive an undesirable under honorable condition discharge and actually received an under conditions other than honorable discharge. The applicant contends that he only enlisted for two years as opposed to the three years annotated on item 17b, DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and would only have a few months left on his enlistment.

The applicant provided a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a letter that stated the above issues.

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

On 12 December 1966 the applicant enlisted in the Regular Army for a period of two years. He completed the required training and was awarded military occupational specialty 11B (Light Weapons Infantryman). The highest pay grade achieved was E-2.

On 11 February 1967, nonjudicial punishment (NJP) was imposed against the applicant for absent without leave (AWOL) from 5 through 8 February 1967. His punishment consisted of forfeiture of $20.00 pay per month for one month, 14 days extra duty, and 14 days restriction.

On 11 July 1967, NJP was imposed against the applicant for failure to go to duty. His punishment consisted of reduction to pay grade E-1, 14 days extra duty, and 14 days restriction.

On 29 August 1967, NJP was imposed against the applicant for sleeping on guard duty. His punishment consisted of 30 days correctional custody, 20 days suspended until 29 November 1967, forfeiture of $50.00 for two months, one month suspended until 29 November 1967.

On 1 December 1967 the applicant was assigned to United States Army Personnel Center (USAPERSCEN), Hawaii.

On 20 June 1968 he was charged by civil authorities for carnal abuse of an eleven year old girl. On 19 September 1968 he pleaded guilty to the reduced charge of indecent assault. He was found guilty and was sentenced to five years imprisonment at hard labor. The sentence was suspended and he was placed on probation for five years.

On 3 December 1968, the applicant consulted with legal counsel and the applicant waived his right to a personal appearance before a board of officers and waived any representation by counsel based upon his notification of separation under AR 635-206, paragraph 37, for conviction by civil court.

On 19 December 1968, the appropriate authority approved the applicant's discharge and directed the issuance of an Undesirable Discharge Certificate. On 13 January 1969, the applicant was discharged, in the pay grade E-1, under the provisions of Army Regulation 635-206, paragraph 37, for conviction by civil court, with an Undesirable Discharge Certificate. He completed 1 year, 11 months and 26 days of creditable service and had 38 days of lost time.

On 16 July 1981 the Army Discharge Review Board (ADRB) heard the applicant's appeal. The ADRB determined that he was properly and equitably discharged with an under conditions other than honorable discharge.

Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel. Paragraph 37 of the regulation provided, in pertinent part, the convening authority is authorized to order discharge or direct retention in the military service when disposition of an individual has been made by a domestic court of the US or its territorial possessions. An undesirable discharge was normally considered appropriate.

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 also 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 honorable conditions.

2. The Board reviewed the applicant's service records, which included three article 15s for AWOL, failure to go to duty and sleeping on guard duty.

3. The Board also noted the applicant's conviction in civil court to the reduced charge of indecent assault.

4. The Board noted that the unit commander initiated separation processing from the Army based on the applicant's conviction by civil court. Records show that on 3 December 1968 the applicant waived representation by counsel and acknowledged in his own hand that he understood the possible effects of an under conditions other than honorable 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 foregoing, the Board determined that the applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural error which would tend to jeopardize 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.

6. The Board determined that, 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 Board also determined that the applicant's service was not satisfactory; therefore, he did not meet the criteria for a general discharge.

7. The applicant's contention that he only enlisted for two years is correct based upon item 41, DD Form 4 (Enlistment Record - Armed Forces of The United States). There is an administrative error on item 17b, DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) which reflects term of service as three years.

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

9. 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.

NOTE: The Board requests that the Army Review Boards Agency Support Division - St. Louis, take the necessary administrative action to correct item 17b of the DD Form 214 of the individual concerned to show he enlisted for two years instead of three years.

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	AR2003085188
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030710
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	110.0200.0000
2.
3.
4.
5.
6.