MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            30 September 1998                 
	DOCKET NUMBER:    AC97-07928

	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. Loren G. Harrell		Director	
	Mr. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright 		Chairperson	
	Mr. Raymond V. O’Connor Jr.		Member	
	Mr. James M. Alward		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 general, under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD).

APPLICANT STATES:  In effect, that he was told that if he kept his record clear his discharge would be automatically upgraded after 3 years.

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

On 22 May 1962 the applicant reenlisted in the Regular Army for 3 years while assigned in Augsburg, Germany.  At the time of his reenlistment the applicant had completed 1 year, 1 month, and 2 days of honorable service, attained the rank of private first class/E-3, and held military occupational specialty 630.00 (Auto Maintenance Helper).

The applicant’s record documents no individual acts of valor, achievement or service warranting special recognition.  However, the record does contain a  record of disciplinary infractions including a trial by special court-martial, and the applicant’s acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the UCMJ.

On 12 February 1963 the applicant accepted an NJP for not complying with an order from his first sergeant.  His punishment for this offense was a reduction in rank to private/E-2.

On 6 April 1963 the applicant was tried by special court-martial for two specifications of violation of Article 91; the first specification was for being disrespectful in language to a superior noncommissioned officer; and the second specification was for willfully disobeying a lawful order.  He was found guilty and sentenced to confinement at hard labor for 6 months; forfeiture of $55.00 per month for 6 months; and reduction to the rank of private/E-1.  

On 15 August 1963 the applicant’s unit commander notified the applicant of his intent to initiate elimination action, under the provisions of AR 635-208 for unfitness. The commander cited the reasons for the action as the applicant’s being a constant disciplinary problem to his superiors and that he was not only  no longer of value to the Army, but was in fact a burden to it.

The applicant, after being advised of his rights and the basis for the contemplated elimination action; elected to waive his right to have his case heard by a board of officers; to waive his right to counsel; and he elected not to submit a statement in his own behalf.  

In an undated 2nd endorsement the appropriate authority approved the applicant’s separation and directed he be issued a GD.  The applicant’s record does not contain a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).  However, the service record indicates the applicant was discharged with a GD from Fort Hamilton, New York on or about 31 October 1963.  

There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

Army Regulation 635-208, then in effect, provided in pertinent part the policies, procedures, and guidance for the prompt elimination of enlisted personnel who were determined to be unfit for further military service.  Individuals discharged under this regulation would normally be issued a UD.

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 Board noted the applicant’s contention that he was told if he kept his record clear his discharge would be automatically upgraded after 3 years.  However, the US Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits and changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.  The Defense Discharge Review Standards specifically state that no factors should be established that require automatic change or denial of a change in discharge.  

2.  Although the applicant’s record does not contain a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), it does record the  facts and circumstances concerning events that led to the applicant’s discharge from the Army.  The Board presumed government regularity in the discharge process and found the reason for and the character of the discharge are commensurate with the applicant's overall record of military service.

3.  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 the aforementioned requirement.

4.  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

________  ________  ________  DENY APPLICATION

						Loren G. Harrell
						Director