MEMORANDUM OF CONSIDERATION


	IN THE CASE OF:	BOARD DATE:             6 May 1998                 
	DOCKET NUMBER:    AC97-10337
 
	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:



Analyst

	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.

APPLICANT STATES:  In effect, that in 1976 President Gerald Ford gave him clemency based on his doing community service at a fire and ambulance service.

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

On 16 December 1964 the applicant was voluntarily inducted into the Army of the United States for 2 years at the age of 17.  The applicant’s record documents no individual acts of valor, achievement or service warranting special recognition, and indicates the highest grade held by the applicant while on active duty was private/E-1.  However, the record does contain an extensive history of disciplinary infractions including: two trials by special courts-martial; two periods of AWOL, and military confinement.

On 16 March 1965 the applicant was tried by special court-martial for violation of Article 86 for being AWOL from 16 January to 28 February 1965.  The applicant plead and was found guilty.  The resultant sentence was restriction to the company area for 60 days, and to forfeit $52.00 per month for four months.

On 11 May 1965 the applicant was again tried by special court-martial for two charges with a total of four specifications.  The first charge was for two specifications of violation of Article 86.  The first specification was for being AWOL from 17 to 30 March 1965, and the second specification was for being AWOL on 23 April 1965.  The second charge was for two specifications of violation of Article 134.  The first specification was for breaking restriction on 
17 March 1965 and the second specification was for breaking restriction on 
23 April 1965.  The applicant plead and was found guilty of all charges and specifications and was sentenced to confinement at hard labor for 5 months and to forfeit $52.00 per month for 5 months.

On 18 May 1965 the applicant’s unit commander notified the applicant of his intent to initiate elimination action on him, under the provisions of AR 635-208 for unfitness.  The commander cited as his reasons for the action the applicant’s two periods of AWOL; two periods of confinement; two convictions by special court-martial; and one case of being dropped from the rolls.  On 17 May 1965 the applicant completed his election of rights by waiving his right to have his case heard by a board of officers; to a personal appearance before a board; to be represented by counsel; and he elected not to make a statement in his own behalf.  
On 24 January 1965 the appropriate authority approved the elimination action and directed the applicant be discharged with a UD.  Accordingly, on 29 May 1965 the applicant was discharged after completing 1 month and 3 days of active military service, and accruing 132 days of time lost due to AWOL and confinement.

There is no evidence of record or independent evidence submitted by the applicant to support that he had completed community service and been issued a clemency discharge (CD).  However, even had the applicant earned the CD, this would not have, in and of itself, required that the applicant’s original discharge be upgraded.  Presidential Proclamation (PP) 4313, dated 
16 September 1974, issued by President Gerald Ford, did establish a CD program; however, earning a CD did not effect the underlying discharge.  Army policy was that award of the CD would be considered by review board’s in their deliberations, but the CD per se did not require relief be granted.
 
On 15 July 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.  

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 evidence of record and the independent evidence submitted by the applicant does not support his contention that he has a right to have his discharge upgraded based solely on being awarded a CD pursuant to a PP 4313.  Earning a CD allowed the applicant to apply for an upgrade of the original discharge, it did not in and of itself require that relief be granted.  The 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.

2.  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.  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