RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: JANUARY 8, 2004
         DOCKET NUMBER: AR2003090988


         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:

Ms. Kathleen A. Newman.		Chairperson
Ms. Linda M. Barker		Member
Mr. John T. Meixell		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, that his Army Achievement Medal and the Overseas Service Ribbon be added to his DD Form 214, Certificate of Release or Discharge from Active Duty; that his discharge be upgraded to honorable, and that the reason be changed to Secretarial Authority.

2. The applicant states, in effect, that he believes that his discharge should be upgraded due to his honorable service. He adds that according to the letter he got from the Army Discharge Review Board (ADRB), an honorable discharge is authorized.

3. The applicant provides a copy of an Army certificate, which awards him the Army Achievement Medal; a copy of the DA Form 638, Recommendation for Award of the Army Achievement Medal; and a copy of a Certificate of Achievement, dated 8 March 1996.

CONSIDERATION OF EVIDENCE:

1. The applicant enlisted in the United States Army Reserve for 8 years in the pay grade E-4 on 25 September 1995. On 7 November 1995, he enlisted in the Regular Army for 3 years.

2. Following completion of basic combat and advanced individual training at Fort Knox, Kentucky, he was awarded the military occupational specialty (MOS) 19K, Armor Crewman.

3. On 8 March 1996, the applicant was awarded an Army Certificate of Achievement for being the High Marksmanship Score Achiever in Company C, 2nd Battalion, 81st Armor Regiment, the unit where he underwent his basic armor training.

4. Following his training, he was assigned overseas to Korea. He arrived in Korea on 11 March 1996 and was assigned to the Company C, 2nd Battalion, 72nd Armor Regiment, 2nd Infantry Division. The applicant departed Korea
en route to Fort Hood, Texas, on 10 March 1997.

5. The applicant was assigned to B Company, 2nd Battalion, 8th Cavalry, 1st Cavalry Division, and on 21 August 1997 absented himself without authority. On 20 September 1997, the applicant was dropped from the rolls of the organization.

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6. On 1 October 1997, the applicant returned to military control at Fort Sill, Oklahoma.

7. The evidence of record shows that on 6 October 1997, court-martial charges were brought against the applicant for being absent without leave from 21 August 1997 until on or about 1 October 1997.

8. On 9 October 1997, the applicant consulted with counsel and submitted a Request for Discharge in Lieu of Trial by Courts-Martial under the provision of Army Regulation (AR) 635-200, chapter 10, for the good of the service. The applicant opted not to submit a statement in his own behalf. In his request, the applicant applied his initials to statements of understating that: 1) his request for discharge was voluntary and he may request discharge in lieu of trial by courts-martial because charges had been preferred against him under the Uniform Code of Military Justice (UCMJ) which authorized the imposition of a bad conduct or dishonorable discharge; 2) he was making his request of his own free will and had not been subjected to any coercion whatsoever by any person; 3) he was afforded the opportunity to consult with counsel and had been fully advised of his rights under the UCMJ; 4) that he understood the elements of the offense charged and admitted to being guilty of the charge against him or of a lesser or included offense; 5) that he understood he could be deprived of some or all Army benefits and that he may be ineligible for many or all benefits administered by the Veteran's Administration [Department of Veteran's Affairs] and that he may be deprived of his rights and benefits as a veteran under both Federal and State law; and 6) that he may encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.

9. In her letter of transmittal of the applicant's request for discharge in lieu of trial by court-martial, the unit commander noted that the sole charge against the applicant was an absence that extended for 41 days (sic). This absence was related to the applicant having become disillusioned with the military. The unit commander opined that the applicant's retention in the service was not in the best interest of the Army.

10. The applicant's chain of command was unanimous in recommending approval of the applicant's request for discharge and that an under other than honorable conditions discharge be issued. The separation approval authority, a lieutenant colonel who had been delegated the authority, approved the request on 5 December 1997 and directed that an under other than honorable conditions discharge be issued.

11. The applicant was discharged in lieu of trial by court-martial, with an under other than honorable conditions discharge, on 19 December 1997, in the rank

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and pay grade, private, E-1. On the date of his discharge, he had 2 years and 2 days active Federal service.

12. Block 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized (All periods of service)) shows that the applicant earned the following: National Defense Service Medal, Army Service Ribbon, Expert Marksmanship Qualification Badge with Pistol Bar, and the Sharpshooter Marksmanship Qualification Badge with Grenade Bar. The Overseas Service Ribbon and the Army Achievement Medal are not shown on the applicant's DD Form 214.

13. According to Table B-1, AR 614-30, the normal "all others" tour of duty in the Republic of Korea is 12 months.

14. The applicant was awarded the Army Achievement Medal, for meritorious service, for the period 11 March 1996 through 10 March 1997, by Permanent Orders 014-7, published by Headquarters, 2nd Battalion, 72nd Armor Regiment, dated 16 January 1997.

15. The applicant applied to the ADRB for an upgrade of his discharge on 14 January 2003. On 10 April 2003, the applicant received a hearing and made a personal appearance before a discharge review panel in Dallas, Texas. The ADRB concluded that the discharge was proper but inequitable as to the characterization and changed the characterization to General, Under Honorable Conditions. The ADRB restored the applicant's rank and pay grade to Private First Class, E-3, but voted not to change the reason for the discharge. On 18 April 2003, the applicant's discharge was upgraded from under other than honorable conditions to General, Under Honorable Conditions, and he was so notified.

16. 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, in lieu of trial by court-martial. A discharge under other than honorable conditions is normally considered appropriate, but the separation authority may direct a general discharge or an honorable discharge if such is merited by the soldier's overall record and if the soldier's record is so meritorious that any other characterization clearly would be improper.

17. 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

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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.

18. AR 635-200, Chapter 5, provides authority for the separation of soldiers for the convenience of the government. Paragraph 5-3, states that Secretarial plenary authority is used on a case-by-case basis and is the prerogative of the Secretary of the Army. It is exercised sparingly and seldom delegated. It is used when no other provision of AR 635-200 applies and when early separation is clearly in the best interest of the Army.

19. AR 600-8-22 shows that the Secretary of the Army established the Overseas Service Ribbon on 10 April 1981. The regulation states, in pertinent part, that effective 1 August 1981, all members of the Active Army, Army National Guard, and Army Reserve in an active Reserve status are eligible for the award for successful completion of overseas tours. The award may be awarded retroactively to those personnel who were credited with a normal overseas tour completion before 1 August 1981 provided they had an Active Army status on or after 1 August 1981 and the overseas service is not recognized with another U.S. service medal.

DISCUSSION AND CONCLUSIONS:

1. The evidence of record shows that the applicant was charged with the commission of an offense punishable with a punitive discharge under the UCMJ.

2. 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, to avoid trial by court-martial, after consulting with defense counsel. In doing so, the applicant admitted guilt to the stipulated offense under the UCMJ.

3. There is no indication that the request was made under coercion or duress.

4. The applicant’s voluntary request for separation, was administratively correct and in conformance with applicable regulations. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

5. The request for discharge that the applicant submitted was for his own convenience to avoid the possibility of a punitive discharge and having a felony conviction on his record.

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6. The characterization of service for this type of discharge is normally under other than honorable conditions and the applicant was aware of that before requesting discharge. The characterization of the applicant's discharge was upgraded from under other than honorable conditions to general, under honorable conditions.

7. The letter that the applicant was provided by the ADRB was reviewed to corroborate the statement that the applicant included in his DD Form 149 that, "an honorable discharge is authorized." The letter from the ADRB does not state this.

8. The singular lapse of good judgment, leading to 39 days absence without leave, diminished the quality of the applicant's service below that meriting a fully honorable discharge. By having gone absent without leave and having been dropped from the rolls of his organization, the quality of his service did not meet the standards of acceptable conduct and performance expected of Army personnel; therefore, the applicant is not entitled to an upgrade of his general, under honorable conditions discharge, to a fully honorable discharge or to a change in the reason for discharge.

9. The applicant completed an "all others" tour of duty in the Republic of Korea and therefore met the criteria for award of the Overseas Service Ribbon. It would be appropriate to add this ribbon to the applicant's DD Form 214.

10. The applicant was awarded the Army Achievement Medal. The award does not appear on the applicant's DD Form 214. It would be appropriate to add this award to his DD Form 214 at this time.

BOARD VOTE:

kan_____ lmb_____ jtm_____ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION

1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the Army Achievement Medal and the Overseas Service Ribbon to the applicant's DD Form 214.

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2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to an upgrade of the applicant's discharge to a fully honorable discharge, with a change in the reason to Secretarial Authority.





                  ___Kathleen A. Newman___
                  CHAIRPERSON

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INDEX

CASE ID	AR2003090988
SUFFIX
RECON
DATE BOARDED	20040108
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	19971219
DISCHARGE AUTHORITY	AR 635-200, Chapter 10
DISCHARGE REASON	In Lieu of Trial by Court-Martial
BOARD DECISION	GRANT IN PART
REVIEW AUTHORITY
ISSUES 1. 360	144.0000
2. 396	144.0135
3. 46	107.0000
4. 71	107.0025
5. 125	107.0079
6.