MEMORANDUM OF CONSIDERATION


	IN THE CASE OF: 

	BOARD DATE:                              
	DOCKET NUMBER:   AC97-09541

	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.  The following members, a quorum, were present:


	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	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 an honorable discharge (HD).

APPLICANT STATES:  In effect, that he was told when he received his discharge that in 3 years his discharge would be upgraded to an HD.

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

On 6 October 1972 the applicant entered the Regular Army for a period of 
3 years at the age of 17. 

On 8 January 1973, while still in advanced individual training,  the applicant went AWOL, he was dropped from the rolls on 13 February 1973, he surrendered to civilian authorities and was returned to military control on 2 April 1974.  On 
18 April 1974 a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant, for violation of Article 85 of the UCMJ, for this period of AWOL.

The record also contains documented evidence that on 25 April 1974, the applicant voluntarily requested discharge for the good of the service-in lieu of trial by court-martial, under the provisions of chapter 10 of AR 635-200.  This request was made after the applicant had been advised by counsel of the basis for his contemplated trial by court-martial, the maximum permissible punishment, and of the possible effects of a UD.  The applicant also attested to the fact that he fully understood he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Department of Veteran Affairs, and that he may be deprived of veterans benefits under state and federal law.  In addition, the applicant admitted guilt to the offense for which he was charged and indicated that under no circumstances did he desire further rehabilitation because he had no desire to perform further military service.

On 6 May 1974 the appropriate authority approved the applicant's request for discharge and directed issuance of a UD.  Accordingly, on 8 May 1974 the applicant was discharged with no verified period of active service and after accruing 484 days of time lost due to AWOL.

On 10 January 1980 1981 the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade to his discharge and found that the discharge process was proper in all respects.  On 26 May 1989 this Board denied the applicant’s request for an upgrade based on Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. 

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 at any time after the charges are preferred, submit 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.  However, at the time of the applicant’s separation the regulation provided for the issuance of 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 his discharge would be upgraded to an HD after 3 years.  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 when an applicant submits a request for change in discharge.  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:  "No factors shall be established that require automatic change or denial of a change in discharge. 

2.  The applicant has provided no new evidence on which to reverse either the decision of the ADRB or the earlier decision of this Board, and there is no indication of procedural errors which would tend to have substantially jeopardized the applicant's rights.  The discharge proceedings were conducted in accordance with law and regulation applicable at the time.  The reason for and the character of the discharge are commensurate with the applicant's overall record of military service.

3.  The Board concluded the evidence of record is clear, and shows the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge and after consulting with legal counsel, he voluntarily, and in writing, requested separation from the Army in lieu of trial by court-martial.  In doing so, the applicant admitted guilt to the stipulated offense under the UCMJ, and attested to his understanding of the possible loss of veterans benefits based on receiving a UD.

4  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.

5.  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