MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  16 November 2000
	DOCKET NUMBER:  AR2000040064

	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. Paul A. Petty		Analyst	

  The following members, a quorum, were present:

	Mr. Walter T. Morrison		Chairperson	
	Ms. Martha E. Schuler		Member	
	Mr. James E. Anderholm		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)

APPLICANT REQUESTS:  That his undesirable discharge under conditions other than honorable be upgraded to a general discharge under honorable conditions.

APPLICANT STATES:  In effect, that he did not receive adequate counseling concerning his request for discharge under chapter 10, that his counsel coerced and manipulated him into requesting discharge under chapter 10, that his counsel did not adequately represent him, and that his counsel promised him that his discharge would be upgraded after 6 months to a general discharge under honorable conditions in the future based on his mitigating circumstances.  He states that he had mitigating circumstances for going AWOL; that he could not provide for his wife and child on his pay in the pay grade of E-1.  The applicant provides copies of his request for discharge for the good of the service with attached statement on his own behalf and a copy of his undesirable discharge under other than honorable conditions.

COUNSEL CONTENDS:  In effect, that the applicant could not provide for his wife and child after he was reduced to pay grade E-1 for possession of marijuana and that he went AWOL to provide for his family; that his reduction and 4 month confinement for possession of marijuana was too harsh for the mere possession of marijuana.  The applicant sought assistance from a legal officer to apply for a hardship discharge but there is no evidence that processing for such was ever started.  In view of the mitigating circumstances surrounding his AWOL and the hardships endured, this applicant deserves every consideration for an upgrade to a General Discharge.

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

That he enlisted in the Regular Army on 21 March 1967 for a 3 year term of active duty with a 6 year service obligation.  He completed basic training, communications center specialist training, and airborne training.  He was assigned in Germany as a clerk typist and then as a motor messenger.  He achieved the rank of Specialist Four on 7 February 1969.  He was honorably released from active duty on 14 March 1970 under provisions for early separation from overseas assignment.  His total active service was 2 years, 11 months, and 
24 days.  He was transferred to USAR Control Group to complete his military obligation.  During this period of service, the applicant received five Article’s 15: two for disrespectful language to a superior noncommissioned officer; one for failure to obey a lawful order; one for willful disobedience of a lawful order given by a superior noncommissioned officer; and one for a breach of the peace by refusing to pay a taxicab driver.  He was reduced from pay grade E-3 to E-2 for one of the incidents of disrespectful language toward a superior noncommissioned officer.

On 28 March 1972, after a break in service, the applicant reenlisted in the Regular Army for a 3 year term of service as a Private First Class, pay grade E-3. He was assigned to the 101st Airborne Division at Fort Campbell, Kentucky, as a communications center specialist.  On or about 16 February 1973, the applicant was prosecuted by a special court-martial for wrongful possession of marijuana.  He was punished by forfeiture of $100 per month for 4 months, confinement at hard labor for 4 months, and reduction from pay grade E-4 to E-1.  He was confined at Fort Campbell from 16 February to 12 March 1973.  He was reassigned to confinement in the Retraining Brigade at Fort Riley, Kansas, from 13 March to 25 May 1973.  He was transferred to Fort Knox where he was assigned to Headquarters and Headquarters Company, 544th Supply and Support Battalion, as a clerk typist on 6 June 1973.

On 20 June 1973, the applicant went AWOL and remained so until 22 July 1973. He again went AWOL on 30 July 1973 and remained so until he surrendered to military authorities on 9 October 1973.  He was AWOL during these two periods for a total of 103 days.  On 23 October 1973, the applicant signed a request for discharge for the good of the service in lieu of trail by court-martial under Army Regulation 635-200, chapter 10.  The applicant’s request includes the statement, “I have not been subject to coercion with respect to this request for discharge, and I have been advised of the implications that are attached to it.  I understand that, if this request for discharge is accepted, I may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  
I understand that, as a result of the issuance of such a discharge, I shall be deprived of many or all Army Benefits, that I may be ineligible for many or all benefits administered by the Veteran’s Administration, and that I may be deprived of my rights and benefits as a veteran under both federal and state law. I also understand that I may expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.  I have consulted with counsel, who has fully advised me of the nature of my rights.”

The applicant also submitted a statement on his own behalf.  In his own handwriting, he again requested discharge under chapter 10 for the good of the service.  He stated that after being reduced from pay grade E-4 to E-1 for possession of marijuana, he could not take care of his wife and child financially, so he went AWOL.  He states that he had gone to Army Emergency Relief, the Red Cross, and to mental hygiene for assistance but that their help was insufficient.  He states that he asked a legal officer about a hardship discharge but was told it is hard to get and took time.

The applicant’s counsel signed a statement that he had counseled the applicant on the reason for his contemplated trial by court-martial, the possible maximum punishments, the effects of an undesirable discharge, and the rights and procedures available to the applicant.  He certified that the applicant personally made the choice to request discharge in lieu of trial by court-martial.
The separation authority considered the charges against the applicant, the applicant’s request for discharge under chapter 10, the applicant’s attached statement on his own behalf, and the applicant’s military record.  The separation authority approved the applicant’s request for discharge for the good of the service in lieu of court-martial.  The applicant was so discharged with an undesirable discharge on 27 December 1973 with 1 year, 2 months, and 9 days active service and 202 days lost for this period of service.

In 1974, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his undesirable discharge to a general discharge.  On his application, he stated, “Rather than wait the time for administrative procedures (for discharge), I resigned from the Army for the good of the service.  Family problems were being generated because of the lack of money, and I felt that it was best for me to resign, even if under other than honorable conditions.”  The ADRB considered his request on 17 Jun 1974 and denied a discharge upgrade finding that his undesirable discharge had been both proper and equitable.

Army Regulation 635-200 (Enlisted Personnel Separations), chapter 10 (Discharge for the Good of the Service), states that a member who has committed an offense or offenses for which the Uniform Code of Military Justice (UCMJ) and the Manual for Court-Martial (MCM) authorize punishment which includes a punitive discharge (bad conduct or dishonorable), may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  An undesirable discharge under other than honorable conditions is normally considered appropriate for discharge under chapter 10.  According to the MCM, the maximum punishment for AWOL in excess of 30 days is a bad conduct discharge or a dishonorable discharge, confinement for one year, and total forfeiture of all pay and allowances.

According to the Manual of Court-Martial, the authorized punishment for possession of marijuana, violation of article 112a, is a punitive discharge (bad conduct or dishonorable), reduction to pay grade E-1, total forfeiture of all pay and allowances, and confinement for up to 5 years.  Any offense authorizing confinement for more than 30 days is not a misdemeanor and is considered a felony.

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 applicant’s special court-martial punishment for possession of marijuana, reduction to pay grade E-1, confinement for 4 months, and forfeiture of $100 per month for 4 months, is a conservative punishment considering the maximum possible punishment of confinement up to 5 years, total forfeiture of all pay and allowances, and a punitive discharge.

2.  The applicant requested discharge for the good of the service in lieu of trial by court-martial by his signature and in his personal hand written statement.  He stated that he made the choice without coercion and that he had been advised of the implications of such a discharge to include the disadvantages of an undesirable discharge.  He voluntarily requested discharge for the good of the service in lieu of trial by court-martial rather than risk possible punishment by court-martial for AWOL, which punishment could have resulted in a bad conduct or dishonorable discharge and confinement for 1 year.

3.  The violation of AWOL, especially in excess of 30 days, is considered a serious violation.  There is no evidence that the applicant was coerced or forced to request discharge in lieu of trial by court-martial.  He was provided adequate and correct counsel.  According to regulatory procedure, the separation authority would have considered fully the applicant’s statement on his own behalf and evidently did not find the details of the statement mitigating with respect to the type of discharge given. There is no provision or requirement for the applicant’s counsel to argue for or represent the applicant to the separation authority.  Such defense is presented to the separation authority by the applicant through his furnished statement on his own behalf.

4.  There is no evidence that the counsel promised the applicant that his undesirable discharge would be upgraded to a general discharge.  There is no provision of regulation or law for a upgrade of a discharge after 6 months from the time of discharge.

5.  It is noted that the applicant’s misconduct of possession of marijuana was the cause of his reduction to pay grade E-1 and 4 month confinement which the applicant states was the source of his financial and family hardship.  While there is compassion for the family who suffers as a result of the misconduct of the soldier, this circumstance is not sufficiently mitigating to justify or excuse the further misconduct of AWOL.  Considering the applicant’s AWOLs and misconduct during the period of service in question, and his request for discharge 

for the good of the service in lieu of trial by court-martial, the undesirable discharge is proper and equitable.

6.  There is no evidence that the applicant initiated a request for hardship discharge or that the chain of command did not act on such a request.

7.  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

__wm____  ___ms___  ___ja___  DENY APPLICATION

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

INDEX

CASE ID	AR2000040064	
SUFFIX		
RECON		
DATE BOARDED	20001116	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19731227	
DISCHARGE AUTHORITY	AR 635-200, Ch 10	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.110	Discharge Documents	
2.		
3.		
4.		
5.		
6.