MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 1 November 2001
         DOCKET NUMBER: AR2001057304

         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
Ms. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Mr. Walter T. Morrison		Chairperson
Mr. Arthur A. Omartian		Member
Mr. Curtis L. Greenway		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)

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APPLICANT REQUESTS: In effect, that his bad conduct discharge be upgraded to honorable or a general discharge.

APPLICANT STATES: That he is very heavy hearted and knows that he made a big mistake. He contends that he is currently doing well but his conscience won’t “hold still”. He goes on to state that he served his country and did not run out of the country to avoid Vietnam. The draft dodgers were forgiven and he calls that desertion. He admits that he had a drug problem at the time; however, that is corrected now. He also states that he only sold his field jacket. In support of his application, he submits a copy of a letter, dated 15 March 1979, from the Office of the Adjutant General; a personal letter, dated 27 March 1981; a character reference letter, dated 2 March 1981, from his pastor; and an undated character reference letter from his staff manager.

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

The applicant entered active duty on 7 April 1970 for a period of 3 years. He trained as a cook and was honorably discharged on 18 January 1971 for immediate reenlistment. He reenlisted on 19 January 1971. The applicant was transferred to Vietnam on 11 February 1971 and medically returned to the United States due to asthmatic bronchitis. His highest grade attained was private first class/pay grade E-3.

Between 8 June 1971 and 11 July 1973, nonjudicial punishment was imposed against the applicant on seven occasions for various infractions which include being absent without leave (AWOL), disobeying a lawful regulation, disobeying lawful orders, failure to go to his appointed places of duty and appearing without rank insignia.

On 21 September 1973, the applicant was convicted by a special court-martial of making 14 bad checks ($259.64). He was sentenced to be discharged with a bad conduct discharge, reduced to pay grade E-1, forfeit $20 pay per month for
6 months and to be confined at hard labor for 3 months. On 12 November 1973, the convening authority approved the sentence; however, suspended the bad conduct discharge for 6 months.

On 20 December 1973, the unexecuted portions of the approved sentence to a bad conduct discharge (suspended for 6 months) and forfeiture of $20 pay per month for 6 months were suspended until 20 March 1974. On 12 April 1974, the Army Court of Military Review affirmed the findings of guilty and the sentence.

On 14 August 1974, the applicant was convicted by a special court-martial of being AWOL from 24 June 1974 to 25 June 1974, disobeying a lawful command from a superior commissioned officer, selling military property and escaping from custody. He was sentenced to be discharged with a bad conduct discharge, confined at hard labor for 2 months, forfeit $150 pay per month for 2 months and to be reduced to pay grade E-1. On 9 October 1974, the convening authority approved the sentence.

On 10 July 1975, the Army Court of Military Review affirmed the findings of guilty and the sentence. On 19 September 1975, the applicant’s appellate review was completed. Accordingly, the applicant was discharged pursuant to his court-martial conviction on 1 March 1976 and issued a bad conduct discharge. He had served 5 years and 7 days of total active service with 323 days lost time due to AWOL and confinement and 439 days of excess leave from 19 December 1974 through 1 March 1976.

On 30 March 1982, the Army Discharge Review Board denied the applicant’s request to upgrade his discharge to honorable.

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 (emphasis added), 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.

Army Regulation 635-200, paragraph 3-7, provides that a general discharge is 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 the soldier’s 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 Board reviewed the applicant’s record of service which included seven nonjudicial punishments, two special court-martial convictions and 323 days lost due to AWOL and confinement and determined that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel. The Board also determined that the applicant’s record of service was not satisfactory; therefore, the applicant is not entitled to an honorable or general discharge.

2. The Board also considered the character reference letters provided on behalf of the applicant. However, good post-service conduct alone is not a basis for upgrading a discharge.
3. On 30 March 1982, the Army Discharge Review Board denied the applicant’s request to upgrade his discharge to honorable.

4. Trial by court-martial was warranted by the gravity of the offenses charged. Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

5. 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.

6. 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

WTM___ AAO_____ CLG____ DENY APPLICATION

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

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INDEX

CASE ID	AR2001057304
SUFFIX
RECON
DATE BOARDED	20011101
TYPE OF DISCHARGE	(BCD)
DATE OF DISCHARGE	19760301
DISCHARGE AUTHORITY	AR 635-200 CHAPTER 11
DISCHARGE REASON	Pursuant to a court-martial
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	110.0200
2.
3.
4.
5.
6.