MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            24 June 2003
	DOCKET NUMBER:   AR2003087860

	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. Margaret K. Patterson		Chairperson	
	Mr. Ronald E. Blakely		Member	
	Mr. Frank C. Jones, II		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:  In effect, that his Under Other Than Honorable Conditions Discharge be upgraded to an Honorable or a General (Under Honorable Conditions) Discharge.

APPLICANT STATES:  In effect, that his discharge was inequitable because it was based on one isolated incident in forty-eight months of service with no other adverse action.  The applicant added in a self-authored statement, that he joined the Army at the tender age of 19.  He was very young and naive and vulnerable to peer pressure.  He made a grave mistake and it cost him his military career.  Serving the Army was his choice and he was proud of serving his country the same as he was of being a soldier; unfortunately, bad influences and peer pressure led him to doing something that he really did not intend to do, which took away the things that he had worked hard for.

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

The applicant enlisted for 3 years in the Regular Army on 28 April 1981 for training as an Administrative Specialist, military occupational specialty (MOS), 71L.

Following completion of basic combat and advanced individual training at Fort Jackson, South Carolina, he was awarded the MOS 71L.

After completing all required training, he was assigned to Italy and to Headquarters and Headquarters Battery, 559th US Army Artillery Group.

The applicant’s records show that the highest permanent rank and pay grade that he held on active duty was Specialist Four, E-4.  The record contains no documentary evidence of acts of valor, achievement, or service warranting special recognition.

On 29 December 1981, the applicant received an Article 15 under the provisions of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed, to his appointed place of duty on 17 December 1981.  As his punishment, he was reduced to the pay grade E-1 (suspended until 12 January 1982) and to perform extra duties for 14 consecutive days.  The applicant did not appeal the punishment.

The applicant received a second Article 15 under the provision of the UCMJ on 29 December 1981.  Although he was found guilty, the commander did not impose any punishment.  Instead, he vacated the suspension of reduction to 

Private, E-1, that had been imposed on him in the Article 15 that was administered on the same date.

On 27 January 1982, the applicant received an Article 15 under the provisions of the UCMJ for failing to go at the time prescribed to his appointed place of duty on 23 January 1982.  As his punishment, he was restricted to the company area for 7 days, ordered to perform extra duties for 7 days, and to forfeit 7 days pay (suspended until 28 February 1982).

On 5 February 1982, the commander, 559th US Army Artillery Group, imposed a bar to reenlistment on the applicant due to his history of disciplinary actions.

On 3 March 1982, the applicant was reassigned to the 69th Ordnance Company.  

On 12 May 1982, the commander 69th Ordnance Company recommended that the bar to reenlistment be removed.  In his request, the commander stated that the applicant had shown himself to be a conscientious, dedicated, self-motivating young man who had learned from his past mistakes.  He believed that the applicant had adequately paid for his acts of indiscretion and should be allowed to compete with his peers for retention and promotion in the Army.

The removal of the bar to reenlistment was approved on 21 May 1982.

The applicant was promoted to the rank and pay grade, Specialist Four, E-4, on 18 March 1983.

Court-martial charges were brought against the applicant on 1 May 1984:  for wrongfully and unlawfully receiving $20.00 from another service member as compensation for voiding and processing of a DA Form 31, Request And Authority For Leave; in a manner that would enable that service member to receive 18 days of uncharged leave; for from about 1 January 1983 to on or about 30 April 1983 wrongfully distributing 2 grams, more or less, of marijuana in the hashish form; for from on or about 1 March 1983 to on or about 31 March 1983, knowingly and wrongfully using some amount of cocaine; and for from on or about 1 March 1983 to on or about 31 March 1983 knowing and wrongfully useing some amount of marijuana in the hashish form.

The evidence of record shows that on 2 May 1984, the applicant consulted with counsel before submitting his request for discharge from the service.  In his application for discharge, the applicant elected to not submit a statement in his own behalf.  In his request, the applicant also stated that he had not been 

subjected to coercion with respect to his request for discharge and he had been advised of the implications that were attached to it.  He acknowledged that he understood that he could be discharged under other than honorable conditions and furnished a Discharge Under Other Than Honorable Conditions.  He understood that as a result of such a discharge, he would be deprived of many or all benefits administered by the Veterans' Administration and 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 by reason of a Discharge Under Other Than Honorable Conditions.

On 2 May 1984, the applicant requested discharge for the good of the service in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge.

The applicant's chain of command unanimously recommended approval of his request and recommended that he be discharged with a discharge under other than honorable conditions.

The separation authority, a major general, approved the applicant's discharge on 
9 May 1984 and directed that he be discharged with a Discharge Under Other Than Honorable Conditions.

The applicant was discharged on 28 June 1984 in the rank and pay grade, Private, E-1, under the provisions of chapter 10, Army Regulation 635-200, for the good of the service, in lieu of trial by court-martial.  His service was characterized as under other than honorable conditions and he was provided a Discharge Under Other Than Honorable Conditions.  On the date of his discharge, he had 3 years, 2 months and 1 day active Federal service with no lost time.

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.

Army Regulation 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. 

Army Regulation 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 above referred to regulation also defines a general discharge as 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 separation specifically allows such characterization.

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 an offense 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 Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial.  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 applicant’s voluntary request for separation, was administratively correct and in conformance with applicable regulations.  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.

4.  While he may now believe that he made the wrong choice, the applicant should not be allowed to change his mind at this late date, especially considering his less than distinguished record of service.  Additionally, it is noted that it was the applicant that requested a discharge for the good of the service to avoid the possibility of a punitive discharge and having a felony conviction on his records.

5.  The Board also noted that 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.

6.  Finally, the Board considered the applicant’s entire record of service.  There is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition.  There is also no evidence that the applicant was any less mature or that he was any more vulnerable to peer pressure than other soldiers of the same age who served successfully in the Army.

7.  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 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 discharge under other than honorable conditions to an honorable or a general discharge.

8.  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.

9.  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

__mkp___  __reb___  __fcj___  DENY APPLICATION

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

INDEX

CASE ID	AR2003087860	
SUFFIX		
RECON		
DATE BOARDED	20030624	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19840628	
DISCHARGE AUTHORITY	AR 635-200, Chapter 10	
DISCHARGE REASON	A70.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.0000	
2.	144.7000	
3.		
4.		
5.		
6.