MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        


                  BOARD DATE: 23 September 2003
                  DOCKET NUMBER: AR2003091597

         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:

Ms. Jennifer L. Prater		Chairperson
Mr. Arthur A. Omartian		Member
Mr. Patrick H. McGann		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 discharge be upgraded to honorable.

APPLICANT STATES: In effect, that he was told that his discharge would be a chapter 9 instead of a chapter 10.

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

The applicant enlisted in the Regular Army on 29 October 1979 for 3 years in the pay grade E-1.

Following completion of basic combat and advanced individual training at Fort Sill, Oklahoma, he was awarded the military occupational specialty (MOS) 17C, Field Artillery Target Acquisition Specialist.

Following his training, he was assigned to D Target Acquisition Battery, 26th Field Artillery Battalion, Schofield Barracks, Hawaii. He arrived in Hawaii in his unit of assignment on 17 March 1980.

On 24 July 1980, a DA Form 4187, Personnel Action, was prepared and submitted, by his unit commander, to block the applicant's promotion to private first class, pay grade E-3. On 20 October 1980, the promotion block was removed and he was promoted to private first class with an effective date of 1 November 1980.

On 4 February 1981, the applicant received nonjudicial punishment under the provisions of Article 15, of the Uniform Code of Military Justice (UCMJ) for having some marijuana in his possession on 31 January 1981. As his punishment, he was reduced to the rank and pay grade, Private, E-2, ordered to forfeit $150.00 per month for two months, and ordered to perform extra duty for a period of 30 days, and to be restricted to the limits of place of duty, place of worship, medical and dental facilities, dining facility and unit area.

On 12 May 1981, the applicant received nonjudicial punishment under the provisions of Article 15, of the UCMJ for having some marijuana in his possession on 28 April 1981. As his punishment, he was reduced to the rank and pay grade, Private, E-1, ordered to forfeit $250.00 per month for two months, and ordered into correctional custody for 30 days. The applicant appealed and submitted oral arguments in his behalf. On 2 June 1981, the punishment of correctional custody was mitigated to 30 days extra duty and restriction to the limits of place of duty, place of worship, medical and dental facilities, dining facility and unit area.

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On 28 July 1981, the applicant received nonjudicial punishment for being disrespectful to his superior noncommissioned officer on 21 July 1981. As his punishment, he was ordered to forfeit $100.00 per month for one month, and ordered to perform extra duty for 7 days and to be restricted 7 days to the limits of the battery area, place of worship, and dining facility. The applicant did not appeal the punishment.

On 18 August 1981, a bar to reenlistment was imposed on the applicant. In his recommendation, the commander stated, "Since [the applicant] has been assigned to this unit, he has received two article 15s for the wrongful possession of marijuana and one article 15 for disrespect toward a non-commissioned officer. He has been counseled numerous times as to his not obtaining the minimum military standards for himself. He resents authority and has not adapted to the military."

On 28 August 1981, the applicant underwent a mental status evaluation. The applicant's behavior was normal. He was found to be fully alert and fully oriented. His mood was found to be unremarkable, his thinking process to be clear, and his thought content normal. The evaluator found him to have the mental capacity to understand and participate in the proceedings, and to be mentally responsible. The evaluator, the Chief, Psychiatric Nursing, added in the Remarks of the DA Form 3822-R (Report of Mental Status Evaluation), "1. This SM [service member] is currently exhibiting signs of social/emotional maladjustment to the military by his hostility towards his peers, authority figures and the Army. SM relates to past history of difficulties with teachers and civilian authorities. He displays a lack of motivation and a poor attitude as evidenced by his three Article 15's. He is not motivated to change his attitude and/or behavior. 2. Based on this SM's past history and current level of functioning, prognosis for an adequate adjustment to the military with counseling appears poor, at this time. 3. This SM is mentally responsible for his behavior and possesses sufficient mental capacity to understand and cooperate intelligently as a respondent in any administrative or judicial proceedings, which might involve him, if necessary. 4. This individual is cleared for any administrative action deemed appropriate by command. 5. The above information is provided to assist you in such action as you may elect."

The evidence of record shows that on 13 August 1981, court-martial charges were brought against the applicant for the following violations: communication of a threat to kill a superior noncommissioned officer; being derelict in the performance of his duties; wrongfully having in his possession, a knife with a blade more than 3 inches in length; willfully disobeying an order from his superior noncommissioned officer, to clean the orderly room; willfully disobeying an order from his superior noncommissioned officer, to be at ease; for being disrespectful to his superior noncommissioned officer, and for striking his superior noncommissioned officer on the head with his fist. All the above violations for which a special court-martial was recommended occurred on 1 August 1981.

The evidence of record further shows that on 31 August 1981, an additional court-martial charge was brought against the applicant for: failing to go, at the time prescribed, to his appointed place of duty, battery formation, on 19 August 1981.

The evidence of record shows that, on 16 September 1981, the applicant consulted with counsel and submitted a request for discharge from the service under the provision of Army Regulation (AR) 635-200, chapter 10, for the good of the service. The applicant submitted a statement in his own behalf. In this statement, the applicant wrote, "I hereby submit this request for a chapter 10 discharge. I know I'm facing a court-martial and these are serious charges. I'm sorry to have caused these problems in my unit. I cannot adapt to military life, especially in D-Tab. I have no wish for rehabilitation, and do not want to perform any further service. I respectfully request this discharge, and I know it will be for the good of the Army and for me. Thank you."

In his request for voluntary discharge, the applicant acknowledged that he understood that he could request discharge for the good of the service because charges had been preferred against him under the UCMJ, which authorized imposition of a bad conduct or dishonorable discharge. He stated that he was making his request of his own free will and had not been subjected to coercion whatsoever by any person; he acknowledged that by submitting the request for discharge, he was acknowledging that he was guilty of the charges against him or of lesser included offenses; that he understood he could be denied some or all veterans' benefits as a result of his discharge; that he may be deprived of rights and benefits as a veteran under both Federal and State law; and that he may encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.

The applicant's chain of command was unanimous in recommending approval of the applicant's request for discharge, that further rehabilitation efforts be waived, and that an under other than honorable conditions discharge be issued. The separation approval authority, a major general, approved the request on 21 September 1981 and directed that an under other than honorable conditions discharge be issued.

The applicant was discharged with an under other than honorable conditions discharge, in compliance with his request, on 1 October 1981, in the rank and pay grade, private, E-1. On the date of his discharge, he had 1 year, 11 months, and 3 days active Federal service. The record contains no documented acts of valor, achievement, or service warranting special recognition.

There is no evidence that the applicant 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, in lieu of trial by court-martial. A discharge under other than honorable conditions is normally considered appropriate.

AR 635-200, chapter 9, in effect at the time, provided the authority and outlined the procedures for discharging enlisted personnel, without right to board action, based on alcohol or other drug(s) abuse (i.e., the illegal, wrongful, or improper use of any controlled substance, alcohol, or other drug(s)).

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.

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 evidence of record shows the applicant was charged with the commission of a number of offenses punishable with a punitive discharge under 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, to avoid trial by court-martial, and not, chapter 9. In doing so, the applicant admitted guilt to the stipulated offenses under the UCMJ. There is no indication that the request was made under coercion or duress.

3. The Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. It also noted that the characterization of service for this type of discharge is normally under other than honorable conditions and the Board is convinced that the applicant was aware of that before requesting discharge.

4. 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. Further, the Board has determined that the quality of the applicant's 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 under other than honorable conditions discharge to an honorable discharge.

5. 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.

6. 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

__jlp ____ __ao____ __pm___ DENY APPLICATION

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

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INDEX

CASE ID	AR2003091597
SUFFIX
RECON
DATE BOARDED	2003/09/23
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	1981/10/01
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. 394	144.0133
3.
4.
5.
6.