MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        


                  BOARD DATE: 9 October 2003
                  DOCKET NUMBER: AR2003090012

         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. Luis Almodova		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor, Jr.		Chairperson
Mr. Robert J. Osborn		Member
Ms. Eloise C. Prendergast		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 an honorable discharge.

APPLICANT STATES: In effect, that he believes that his discharge is in error in that the statute of limitations on his discharge has exceeded its time and it should be upgraded to honorable.

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

The applicant enlisted in the US Army Reserve on 16 June 1972 and he entered active duty in the Regular Army on 6 November 1972 for 3 years.

Following completion of basic combat and advanced individual training at Fort Polk, Louisiana, he was sent to Germany for duty in the military occupational specialty (MOS) 11B, Light Weapons Infantryman.

He arrived in Germany and was assigned to Company B, 2nd Battalion, 48th Infantry, 3rd Armored Division.

On 31 August 1973, the applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for willfully disobeying an order from and being disrespectful to two superior commissioned officers on 1 August 1973. As his punishment, he was ordered to forfeit $85.00 per month for one month, to perform extra duties for 14 days, and to be restricted to the company area for a period of 7 days. The applicant did not appeal the punishment.

On 17 October 1973, court-martial charges were brought against the applicant for twelve specifications of failing to go to, or going from his appointed place of duty, without authority, as follows: a.) on or about 1800 hours, 2 September 1973, without authority, failed to go at the time prescribed to his appointed place of duty, extra duty; b.) on or about 1300 hours, 3 September 1973, without authority, went from his appointed place of duty, kitchen police; c.) on or about 1000 hours, 5 September 1973, without authority, failed to go at the time prescribed to his appointed place of duty, guard class; d.) on or about 0800 hours, 6 September 1973, without authority, went from his appointed place of duty, guard duty; e.) on or about 1800 hours, 6 September 1973, without authority, failed to go at the time prescribed to his appointed place of duty, extra duty; f.) on or about 1800 hours, 10 September 1973, without authority, failed to go at the time prescribed to his appointed place of duty, extra duty; g.) on or about 1800 hours, 11 September 1973, without authority, failed to go at the time prescribed to his appointed place of duty, extra duty; h.) on or about 0715 hours, 12 September 1973, without authority, failed to go at the time prescribed to his

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appointed place of duty, morning formation; i.) on or about 1800 hours, 12 September 1973, without authority, failed to go at the time prescribed to his appointed place of duty, extra duty; j.) on or about 1800 hours, 13 September 1973, without authority, failed to go at the time prescribed to his appointed place of duty, extra duty; k.) on or about 0715 hours, 18 September 1973, without authority, failed to go at the time prescribed to his appointed place of duty, morning formation; and l.) on or about 0715 hours, 3 October 1973, without authority, failed to go at the time prescribed to his appointed place of duty, morning formation. Each of the above violations was a violation of Article 86 of the UCMJ.

On 29 October 1973, the applicant consulted with counsel and submitted a request for discharge from the service. The applicant's request for discharge for the good of the service indicates that the applicant submitted a statement in his own behalf; however, that statement is not in his service personnel record for the Board's review.

In his request for voluntary discharge, the applicant stated that he was making his request of his own free will and had not been subjected to coercion with respect to his request for discharge and that he had been advised of the implications that were attached to the request for discharge. The applicant acknowledged that he understood he could be denied some or all Army benefits administered by the Veterans' Administration, that he may be deprived of his rights and benefits as a veteran under both Federal and State law, and that he also understood he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.

On 7 November 1973, the company, battalion, and brigade commanders made a telephonic recommendation to the 3rd Armored Division Staff Judge Advocate for approval of the applicant's request for discharge and further recommended that the applicant be issued an Undesirable Discharge Certificate.

The separation approval authority, a major general, approved the request for the applicant's discharge under the provisions of Army Regulation (AR) 635-200, chapter 10, and directed that an Undesirable Discharge Certificate be issued.

The applicant was separated, on 28 November 1973, in the rank and pay grade, Private, E-1, under the provisions of AR 635-200, chapter 10, with an undesirable discharge. The applicant's service was characterized as, "Under Conditions Other than Honorable." On the date of his discharge, he had 1 year, 5 months, and 10 days active Federal service with no lost time. The applicant's record contains no documented acts of valor, achievement, or service warranting special recognition.

There is no evidence that the FSM applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

AR 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 submit, at any time after the charges have been preferred, a request for discharge for the good of the service. Issuance of an undesirable discharge was normally considered appropriate.

AR 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, 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.

The Table of Maximum Punishments in the Manual for Courts-Martial states that the maximum punishment that may be imposed upon an individual for violation of Article 86, Absence without leave, which includes failing to go to, or going from, the appointed place of duty, is confinement at hard labor, not to exceed 1 month, or a forfeiture of two-thirds pay per month, not to exceed 1 month, or both. The Table of Maximum Punishments did not include a punitive discharge; either a dishonorable or bad conduct discharge, for violation of this article of the UCMJ.

The Rules for Courts-Martial, Rule 1003(d)(3), is quoted as follows, "(3) Two or more offenses. If an accused is found guilty of two or more offenses for none of which a dishonorable or bad-conduct discharge is otherwise authorized, the fact that the authorized confinement for these offenses totals 6 months or more shall, in addition, authorize a bad-conduct discharge and forfeiture of all pay and allowance."

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: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

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1. The evidence of record shows that the applicant was charged with commission of a series of violations (twelve specifications) of Article 86 of the UCMJ.

2. The Board noted that, after consulting with defense counsel, the applicant voluntarily, and in writing, requested separation from the Army under the provisions of AR 635-200, chapter 10, for the good of the service. In doing so, the applicant admitted guilt to the stipulated offenses under the UCMJ.

3. The Board is of the opinion that the applicant, with the help of military counsel, calculated the possibilities of being found guilty on each count with which he was charged. Rather than face the possibility of being sentenced to confinement for up to one year, forfeiting all pay and allowances and receiving a bad-conduct discharge, the applicant submitted his request for discharge.

4. The Board noted that it was the applicant who requested a discharge for the good of the service under the provisions of AR 635-200, chapter 10, for the good of the service, to avoid the possibility of a punitive discharge and having a felony conviction on his records. There is no indication that the request was made under coercion or duress.

5. Contrary to the applicant's assertions, that the discharge he received is unfair because the statute of limitations has been exceeded, the US Army does not have, nor has it ever had, a policy to automatically upgrade discharges. Each case, including the applicant's case, is decided on its own merits when an applicant submits a request for a change in their discharge. A change may be warranted if the Board determines that the characterization of service, or the reason for discharge, or both, were improper or inequitable. The Defense Discharge Review Standards specifically state that no factor should be established that require automatic change or denial of a change in discharge.

6. The Board considered the applicant's entire record of service. The Board is convinced that the reason for discharge and the characterization of service were both proper and equitable. It is the Board's determination that the quality of the applicant's service did not meet the standards of acceptable conduct and performance expected of Army personnel; therefore, he is not entitled to an upgrade of his undesirable discharge to an honorable discharge.

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.

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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

____ecp _ __rvo___ ___rjo___ DENY APPLICATION

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

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INDEX

CASE ID	AR2003090012
SUFFIX
RECON
DATE BOARDED	2003/10/09
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1973/11/28
DISCHARGE AUTHORITY	AR 635-200, chapter 10
DISCHARGE REASON	For the Good of the Service.
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 360	144.0000
2. 713	144.7110
3.
4.
5.
6.