MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           19 August 2003
	DOCKET NUMBER:   AR2003091642

	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. Fred N. Eichorn		Chairperson	
	Ms. Margaret V. Thompson		Member	
	Mr. John T. Meixell		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 Undesirable Discharge (UD) be upgraded to enable his receiving veterans benefits.

APPLICANT STATES:  The applicant provided no argument in support of his application for the upgrade of his discharge to enable his receiving veterans benefits.  In support of his application, he did submit a copy of his DD Form 4, Enlistment Contract, Armed Forces of the United States, and a copy of his DD Form 214, Armed Forces of the United States Report of Transfer or Discharge, with a discharge date of 9 July 1971.

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

The applicant enlisted in the Regular Army for 3 years on 18 June 1968.  He underwent basic combat training at Fort Campbell, Kentucky, and advanced individual training at Fort Polk, Louisiana.  Upon completion of all required training, he was awarded the military occupational specialty (MOS) 76A, Supply Clerk.

On 12 November 1968 he was assigned overseas to the 70th Medical Depot, in Okinawa.

On 14 May 1969, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to repair to Reveille Formation on 1, 5, 7, and 9 May 1969.  The punishment imposed consisted of reduction to the rank and pay grade, Private, E-2 (suspended for 30 days), forfeiture of $30.00 for one month, 14 days extra duty, and 14 days restriction to his place of duty, place of worship and his billets.  The applicant did not appeal the punishment.

On 22 July 1969, the applicant accepted NJP under the provisions of Article 15, UCMJ, for failing to repair to Reveille Formation on 7 July 1969 and for failing to go to his appointed place of duty at the appointed time, on 10 July 1969.  The punishment imposed consisted of a forfeiture of $25.00 per month, for one month, 14 days extra duty, and 14 days restriction to his unit.  The applicant did not appeal the punishment.

On 5 January 1970, the applicant accepted NJP under the provisions of Article 15, UCMJ, for disobeying a lawful order from his superior noncommissioned officer on 30 December 1969 and for failing to go to his appointed place of duty, at the appointed time, on 5 January 1970.  The punishment imposed consisted of a forfeiture of $20.00 per month, for one month, 14 days extra duty, and 14 days restriction to his unit.  The applicant did not appeal the punishment.

On 16 January 1970, the applicant accepted NJP under the provisions of Article 15, UCMJ, for going from his appointed place of duty without authority on 9 January 1970.  The punishment imposed consisted of a forfeiture of $24.00 per month, for one month, restriction to Building 487, place of duty and place of worship for 14 days, and extra duties for 14 days, to run concurrently.  The applicant appealed the punishment.  On 19 January 1970, the punishment of restriction to Building 487, excluding place of duty and place of worship for 14 days, and extra duties for 14 days, to run concurrently, was remitted.

On 28 January 1970, the applicant accepted NJP under the provisions of Article 15, UCMJ, for failing to go to his appointed place of duty at the appointed time, on 27 January 1970.  The punishment imposed consisted of a forfeiture of $18.00 per month, for one month, and his reduction to the rank and pay grade, Private, E-2.  The applicant did not appeal the punishment.

On 5 March 1970, the applicant accepted NJP under the provisions of Article 15, UCMJ, for failing to go, at the time prescribed, to his place of duty, on 4, 12, 13, and 14 February 1970; and for having willfully disobeyed an order, an order it was his duty to obey on 10 February 1970.  The punishment imposed consisted of a detention of $60.00 per month, for one month, and 45 days restriction to the company area, exclusive of place of duty and place of worship for 45 consecutive days, suspended for 45 days.  The applicant did not appeal the punishment.

On 12 June 1970, the applicant completed his overseas tour of duty in Okinawa and was assigned to Fort Huachuca, Arizona.

On 30 July 1970, the applicant accepted NJP under the provisions of Article 15, UCMJ, for violating a lawful general order by leaving the post without a pass in his possession on 27 July 1970, and by being off post in his fatigue uniform on the same date.  The punishment imposed consisted of a forfeiture of $25.00 per month for one month.  The forfeiture was suspended for a period of 30 days.  The applicant did not appeal the punishment.

On 13 October 1970, the applicant accepted NJP under the provisions of Article 15, UCMJ, for being absent without authority from his unit on 16 September 1970 and remaining absent until 12 October 1970.  The punishment imposed consisted of a reduction to the rank and pay grade, Private E-2; forfeiture of $30.00 per month, for one month; 14 days extra duty and 14 days restriction to his company area.  The reduction and the forfeiture portions of the punishment were suspended for a period of 14 days.  The applicant did not appeal the punishment.

On 20 November 1970, the applicant accepted NJP under the provisions of Article 15, UCMJ, for failing to go to his appointed place of duty at the appointed time, on 18 November 1970.  The punishment imposed consisted of reduction to the rank and pay grade, Private, E-2; 14 days extra duty; and 14 days restriction to the company area.  The applicant did not appeal the punishment.

On 26 January 1971, the applicant's commander recommended that he be barred from reenlistment.  The commander stated in his recommendation that he [the applicant] was a substandard soldier.  The recommendation was based on the applicant's extensive record of offenses resulting in nonjudicial punishment.  

On the same date, the applicant acknowledged that the bar to reenlistment was being recommended.  He elected not to make a statement in his own behalf.

The bar to reenlistment was approved on 16 February 1971, by the approval authority, a colonel.

On 5 March 1971, the applicant accepted NJP under the provisions of Article 15, UCMJ, for failing to obey a lawfully given order by his superior noncommissioned officer, which it was his duty to obey, on 26 February 1971.  The punishment imposed consisted of reduction to the rank and pay grade, Private, E-1; 14 days extra duty; and 14 days restriction to his company area; and forfeiture of $15.00 per month, for one month.  The applicant appealed the punishment and on 9 March 1971, the appeal was denied.

Entries appear in Item 44 (Time Lost Under Section 972, Title 10, United States Code), DA Form 20, Enlisted Qualification Record, which indicates that the applicant was absent without leave from 16 September to 11 October 1970, from 2 January to 7 January 1971, from 2 to 3 March 1971, from 13 to 27 April 1971, and from 30 April to 10 May 1971.  The record shows he was in pre-trial confinement from 11 May to 9 July 1971.

The evidence shows that on 12 May 1971, court-martial charges were brought against the applicant for wrongfully communicating a threat to injure a fellow soldier on 31 March 1971; absenting himself without proper authority from his unit on 13 April and remaining absent until 28 April 1971; and for absenting himself from his unit on 30 April 1971 and remaining absent until 11 May 1971.

On 20 May 1971, an additional court-martial charge was brought against the applicant for larceny of a television set from a fellow soldier on 13 April 1971.

On 25 June 1971, the Commander, Headquarters, Fort Huachuca, requested an opinion concerning the applicant's discharge under Army Regulation 635-200, chapter 10.  In his request for an advisory opinion, the commander reported that the applicant had been sentenced to a bad conduct discharge, confinement at hard labor for six months, and forfeiture of $100.00 per month, for six months.  The record of trial had not yet been completed, nor had the convening authority taken action on the case.
In his request for an advisory opinion, the commander asked if the convening authority could entertain and grant a request for discharge for the good of the service under Army Regulation (AR) 635-200, chapter 10, after the court-martial had sentenced an accused; and could the convening authority grant a request for discharge for the good of the service after the convening authority completes his action, when that action approves but does not suspend the punitive discharge?  If not, may the convening authority subsequently suspend the punitive discharge, then, thereafter grant the discharge for the good of the service?

On 1 July 1971, the Chief, Military Personnel Law Team, Military Affairs Division, Office of the Judge Advocate General, responded that, the request for discharge for the good of the service was separate and distinct from any court-martial proceedings and the request could be accepted at any time prior to execution of a punitive discharge, but should the convening authority complete his action, approving and not suspending the punitive discharge imposed by the sentence, it would not be proper to approve and order the execution of a second discharge for the good of the service.  However, if an adjudged punitive discharge is suspended, separation for the good of the service may be accomplished.

The evidence of record shows that on 2 July 1971, the applicant consulted with counsel and submitted a request for discharge for the good of the service under the provisions of AR 635-200, chapter 10.  In his request for discharge, the applicant stated that a special court martial had tried him on 4 June 1971, and that the special court-martial was empowered to adjudge a bad conduct discharge.  He stated that he was acquitted of the charges of wrongfully communicating a threat and larceny of a television but that he had pled guilty of two charges of being absent without leave (15 days and 11 days).  The court sentenced him to a bad conduct discharge, to be confined at hard labor for six months, and to forfeit $100.00 per month, for six months.  Because the trial results had not yet been reviewed by the general court-martial convening authority, he understood that he could still request discharge for the good of the service.

In his request, the applicant acknowledged that he was making his request of his own free will and had not been subjected to coercion whatsoever by any person.  He understood that if his request for discharge were accepted, he might be discharged under other than honorable conditions and furnished an undesirable discharge certificate.  He understood that as a result of issuance of such a discharge he shall be denied of many or all benefits administered by the Veterans Administration [now department of Veteran Affairs] and that he might be deprived of his rights and benefits as a veteran under both Federal and State law and that he might encounter substantial prejudice in civilian life by reason of an undesirable discharge.

The applicant submitted a statement in his behalf.  In his statement, he expressed his shock at being sentenced to a bad conduct discharge and was determined to convince the commander that the discharge should be suspended.  He stated that he had served nearly all of his three-year enlistment commitment, had an overseas tour, was convicted of only 26 days absence without leave, and that serious problems had just come up in his family, and that he had to return home and assume responsibilities as head of the household as soon as possible; and therefore, he was requesting discharge for the good of the service.

The applicant's chain of command recommended approval of his request and recommended that he be discharged with an undesirable discharge.  The separation authority, a colonel, approved the applicant's discharge on
9 July 1971 and directed that he be furnished an Undesirable Discharge Certificate, DD Form 258A.

The applicant was discharged on 9 July 1971 in the rank and pay grade, Private, E-1, under the provisions of AR 635-200, chapter 10, 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 an undesirable discharge certificate.  On the date of his discharge, he had 2 years, 8 months, and 25 days active Federal service with 129 days of lost time due to AWOL and confinement.

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, 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 applicant was sentenced to a bad conduct discharge (a punitive discharge), to be confined at hard labor for six months, and to forfeit $100.00 per month, for six months.  After being sentenced, the commander requested an advisory opinion to determine if a discharge for the good of the service could be accepted from the applicant under the provision of AR 635-200, chapter 10.

3.  On 1 July 1971, the Office of the Judge Advocate General, responded that a request for discharge for the good of the service was separate and distinct from any court-martial proceedings and the request may be accepted at any time prior to execution of a punitive discharge.

4.  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.

5.  In his request for discharge, the applicant declared that he was making his request of his own free will and had not been subjected to coercion whatsoever by any person.

6.  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 the applicant had already been court-martialed and sentenced to a bad conduct discharge, and despite this, he was allowed to request a discharge for the good of the service.

7.  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.

8.  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.

9.  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 undesirable discharge to either a general (under honorable) discharge or a fully honorable discharge.

10.  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.

11.  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

__mvt___  ____fe __  __jtm____  DENY APPLICATION

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

INDEX

CASE ID	AR2003091642	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2003/08/19	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1971/07/09	
DISCHARGE AUTHORITY	AR 635-200, ch 10	
DISCHARGE REASON	Lieu of trial by court-martial	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000	
2.		
3.		
4.		
5.		
6.