RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 09 December 2003
         DOCKET NUMBER: AR2003086189


         I certify that hereinafter is recorded the true and complete record of the proceedings 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. Mark D. Manning		Chairperson
Ms. Eloise C. Prendergast		Member
Mr. Raymond J. Wagner		Member

         The applicant and counsel if any, did not appear before the Board.

         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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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests, in effect, reconsideration of his earlier appeal to correct his military records by upgrading his undesirable discharge to an honorable discharge and that his last unit of assignment be corrected to read, D Company, 1st Battalion, 8th Infantry, 4th Infantry Division.

2. The applicant states, in effect, that the separation action was approved on 14 November 1963; then, on 18 December 1963, a month after the separation was approved, he was counseled by his unit commander. The applicant reiterates that he was not assigned to A Company, 3rd Battalion, 8th Infantry, as his last unit of assignment.

3. The applicant provides, the following in support of his request for reconsideration: a letter to his mother from the commander, Company D, 1st Battle Group, 8th Infantry, dated 13 August 1963; a letter addressed to the applicant, from a United States Senator, with a telegram attached to it, dated 26 December 1963; and a yearbook for the 4th Infantry Division for the year 1962.

CONSIDERATION OF EVIDENCE:

1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR2002077865, on 17 December 2002.

2. The applicant’s military records show that on 29 August 1961, he entered the Regular Army for a period of 3 years. He was trained in and awarded military occupational specialty (MOS) 110.00 (Light Weapons Infantryman), and the highest rank and pay grade he attained while serving on active duty was Private First Class, E-3.

3. The applicant’s disciplinary history includes his acceptance of nonjudicial punishment (NJP) on four occasions for the offenses indicated, as follows: 10 March 1962, for failing to obey a lawfully given order; 12 May 1962, for being derelict in the performance of his duties and for failing to repair; 21 May 1962, for sleeping on duty; and 8 December 1962, for being drunk in public and consuming alcohol as a minor. The applicant was convicted by special court-martial on two occasions. He was convicted of being absent without leave (AWOL) from on or about 9 April 1963 to on or about 27 April 1963; and of being AWOL, from on or about 24 July 1963 to on or about 29 July 1963.

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4. The recommendation for the applicant's separation was prepared for submission on 14 November 1963. On 18 December 1963, the applicant's commander formally counseled him that he was recommending that he be discharged from the Army.

5. HFL Form Letter 164, Subject: Action Under the Provisions of AR [Army Regulation] 635-208, dated 18 December 1963, was completed to provide a record of counseling. The applicant elected to waive his rights to legal counsel and opted not to submit statements in his own behalf. The applicant signed the HFL Form Letter 164, after having been counseled of his rights.

6. On 20 December 1963, the intermediate commander recommended approval of the action to separate the applicant and recommended that he be issued an undesirable discharge.

7. Item 7, Findings, of the Proceedings, dated 17 December 2002, states, "On 14 November 1963, the separation action was approved by the appropriate authority, who directed that the applicant receive a UD [undesirable discharge]."

8. The recommendation for the applicant's separation was not approved until 29 January 1964. The date stamp, "29 January 1964," was not applied to the original, signed approval, but it does appear on the "onionskin" copy of the approval.

9. The applicant was referred to the US Army Dispensary at Fort Lewis, Washington, to undergo a separation physical examination. In Item 11 (Organization Unit), Standard Form (SF) 88, Report of Medical Examination, and in Item 11 (Organization Unit), SF 89, Report of Medical History, the applicant entered in his own handwriting, "A Co 3 Bn 8th Inf." The separation physical examination was administered on 31 January 1964.

10. On 10 February 1964, the applicant was discharged from the Army, under the provisions of AR 635-208, in the rank and pay grade, Private, E-1. The applicant's service was characterized as under other than honorable conditions, and he was issued a DD Form 258A, Undesirable Discharge Certificate. On the date of his discharge, he had completed a total of 1 year, 8 months, and 23 days of creditable active military service, and had a total of 265 days of time lost due to AWOL and confinement.

11. The applicant’s Service Record (DA Form 24) and Enlisted Qualification Record (DA Form 20) both confirm that the applicant's last unit prior to his separation was Company A, 3rd Battalion, 8th Infantry. This is the same unit listed in Block 12 (Last Duty Assignment and Major Command) of his DD Form 214, Report of Transfer or Discharge.

12. The applicant submitted his yearbook for 1962 for the 4th Infantry Division in support of his request for reconsideration. The applicant's picture appears in this yearbook. This yearbook shows that at the time it was published, the applicant was assigned to Company D, 1st Battle Group, 8th Infantry.

13. The letter sent to the applicant's mother notifying her of his status and whereabouts was written by the Commander, Company D, 1st Battle Group, 8th Infantry, on 13 August 1963. The applicant was assigned to that unit until 30 September 1963. He was reassigned to Company A, 3rd Battalion, 8th Infantry, on 1 October 1963.

14. In his application to the Army Discharge Review Board on 21 July 1965, the applicant entered, A Co. 3 Bn 8th Inf. in Item 4 (Organization at Time of Separation), on the DD Form 293, Application for Review of Discharge or Separation from the Armed Forces of the United States.

15. On 2 September 1965, the Army Discharge Review Board (ADRB) reviewed the applicant’s case and after determining that his discharge was proper and equitable, it denied the applicant’s request for an upgrade to his discharge.

16. In the applicant's letter to this Board, he contends that he was told by the officer [presumably the commander] who got him to sign the waiver that the discharge was the same as being unable to adjust to military life and that it would automatically be upgraded to honorable after 6 months. The applicant further states that he was told he would be released from confinement and discharged. At the time he believed what he was told by an officer because of his [the applicant's] training. He concludes the paragraph by saying, "This is why the Military Review Board had so little trouble deciding my case. I never offered anything in my defense because I thought it was automatic."

17. The applicant initialed and signed a DA Form 2496-1, Disposition Form (DF), Subject: Review of Discharge, on 10 February 1964, when he was discharged. In this DF, the applicant was provided specific instructions on what to do to have his discharge reviewed.

18. AR 15-185 sets forth the policy and procedures for the ABCMR. It provides that, if a request for 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 that was not in the record at the time of the Board’s prior consideration. This includes but is not limited to any facts or arguments as to why relief should be granted. The staff of the Board is authorized to determine whether or not such evidence has been submitted.

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19. AR 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.

20. The US Army does not have, nor has it ever had, a policy to automatically upgrade discharges. The Defense Discharge Review Standards specifically state that no factors should be established that require automatic change or denial of a change in discharge.

DISCUSSION AND CONCLUSIONS:

1. Item 7, Findings, of the original Proceedings incorrectly stated that the separation action was approved on 14 November 1963. The appropriate authority approved the separation action on 29 January 1964. The date stamp, "29 January 1964," was not applied to the original, signed approval, but it does appear on the "onionskin" copy of the approval.

2. At the time the 1962 yearbook for the 4th Infantry Division, which the applicant submitted in support of his request for reconsideration, was published, the applicant was assigned to Company D, 1st Battle Group, 8th Infantry. He remained assigned to this company until 30 September 1963.

3. The applicant was assigned to Company A, 3rd Battalion, 8th Infantry, on 1 October 1963. The applicant acknowledged this when he completed the SF 88 and 89 he partially completed in preparation for his separation physical examination on 31 January 1964.

4. The unit shown in Block 12 of his DD Form 214, Company A, 3rd Battalion, 8th Infantry, was the last unit to which the applicant was assigned during his service and is correctly entered.

5. HFL Form Letter 164 was completed to provide a record of counseling in connection with the applicant's discharge action. The applicant waived his right to a hearing before a board of officers, waived his rights to representation by counsel, and waived the right to submit a written statement in his own behalf. The applicant's signature attesting to his election of options appears at the bottom of the page beneath paragraph 5.

6. The applicant's contention that he was told by the officer who counseled with him that the discharge would automatically be upgraded to honorable after 6

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months is contradicted by the, DF, Subject: Review of Discharge, which he signed on 10 February 1964, when he was discharged. In this DF, the applicant was provided specific instructions on what to do to have his discharge reviewed. The contents of the DF do not include any indication that review of his discharge was to be automatic or that the Army automatically reviewed discharges after passage of a certain period of time.

7. The Army does not have, nor has it ever had, a policy to automatically upgrade discharges.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

mdm_____ ecp_____ rjw_____ DENY APPLICATION

The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR2002077865, dated 17 December 2002.





                  ____Mark D. Manning___
                  CHAIRPERSON

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INDEX

CASE ID	AR2003086189
SUFFIX
RECON
DATE BOARDED	20031209
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	19940210
DISCHARGE AUTHORITY	AR 635-208
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 360	144.0000
2. 583	144.5000
3.
4.
5.
6.