MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 29 November 2001
         DOCKET NUMBER: AR2001054764

         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. Stephanie Thompkins		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor, Jr.		Chairperson
Mr. John P. Infante		Member
Mr. William D. Powers		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: That his discharge under other than honorable conditions (UOTHC) be upgraded to honorable.

APPLICANT STATES: That his discharge was not granted through a court-martial tribune and he was discharged in violation of his due process. He further states that he served on active duty from 29 January 1974 to 4 March 1975 and in August 1977 President Carter upgraded his UOTHC to a general under honorable conditions. If President Carter’s administration pardoned those individuals with deserter status and granted them amnesty before he left office, he should therefore, be an eligible candidate to meet the requirements to request that his military discharge be upgraded.

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

He enlisted in the Regular Army as a private, pay grade E-1 on 30 January 1974.

On 20 May 1974, he received nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for stealing property of the Post Exchange. His punishment included forfeiture of pay.

On 4 September 1974, he received nonjudicial punishment under Article 15, UCMJ for absence without leave (AWOL) from 16 through 26 August 1974. His punishment included forfeiture of pay and extra duty.

On 3 October 1974, he received nonjudicial punishment under Article 15, UCMJ for failure to go to his appointed place of duty. His punishment included forfeiture of pay and extra duty.

On 30 January 1975, he was charged with one specification of wrongful possession of marijuana.

On 31 January 1975, he was referred for a special court-martial.

On 11 February 1975, after consulting with legal counsel, the applicant voluntarily requested in writing discharge for the good of the service in lieu of trial by court-martial. He stated that he did not desire further rehabilitation, and he had no desire to perform further military service.

On 27 February 1975, the appropriate authority approved his request for discharge and directed that an undesirable discharge be furnished.





He was separated on 4 March 1975, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial. He had a total of 1 year and 23 days of service and 12 days of time lost due to AWOL.

On 17 April 1979, the Army Discharge Review Board denied the applicant’s request for upgrade of his discharge.

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 have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. An undesirable discharge is normally considered appropriate.

Paragraph 3-7 of this regulation provides that an honorable discharge is a separation with honor. 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 inappropriate.

The Special Discharge Review Board Program, often referred to as the “Carter Program,” was announced on 29 March 1977. The program mandated upgrade of administrative discharges if the applicant met specified criteria.

On 4 April 1977 the Department of Defense (DOD) directed the Services to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973. This program, known as the DOD Discharge Review Program (Special) (SDRP) required, in the absence of compelling reasons to the contrary, that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge. Consideration of other factors, including possible personal problems, which may have contributed to the acts which led to the discharge, and a record of good citizenship since the time of discharge, would also be considered upon application by the individual. In October 1978, Public Law 95-126 was enacted. This legislation denied Veterans Administration (VA) benefits to any former service member who had been AWOL for more than
180 consecutive days, or who had been classified as a deserter or a conscientious objector. The DOD was required to establish historically


consistent, uniform standards for discharge reviews. Reconsideration using these uniform standards was required for all discharges previously upgraded under the SDRP and certain other programs as required. Individuals whose SDRP upgrades were not affirmed upon review under these historically consistent uniform standards were not entitled to VA benefits, unless they had been entitled to such benefits before their SDRP review.

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. In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge. He has not shown error, injustice, or inequity for the relief he now requests.

2. The applicant contends that in August 1977 President Carter upgraded his discharge to a general discharge under honorable conditions. There is no evidence of record to show that this action was taken, nor is there any evidence that he made application for an upgrade of his discharge until his review and denial of upgrade by the ADRB on 17 April 1979.

3. He is not eligible for a discharge upgrade under SDRP or Public Law 95-126 because he does not meet the requirements for consideration. The applicant has not submitted convincing evidence to the Board to show that he is deserving of an upgrade based on clemency. The character of the discharge is commensurate with the applicant’s overall record of military service.

4. The evidence of record does not show that the applicant made application for or that he received a Presidential Pardon. Presidential Pardons only reinstate certain civilian rights, they do not impact the characterization of military service.

5. The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations. There is no indication that the request was made under coercion or duress.

6. 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.

7. 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

_rvo____ _wdp____ _jip____ DENY APPLICATION

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

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INDEX

CASE ID	AR2001054764
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20011129
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	A070
2.
3.
4.
5.
6.