MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 14 August 2001
         DOCKET NUMBER: AR2001055422

         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. Ronald E. Blakely		Member
Mr. Joe R. Schroeder		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 dishonorable discharge be upgraded.

APPLICANT STATES: That he was given what he believes is a dishonorable discharge and was not afforded due process. He believes that the discharge was recorded in error. He also contends that he thought his discharge would be summarily reviewed and upgraded without any response on his part.

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

At the age of 17, with parental consent, the applicant enlisted on 17 January 1962 for a period of 3 years. He successfully completed basic and advanced individual training and was transferred to Germany for duty as a cannoneer. He was honorably discharged on 28 February 1964 for immediate reenlistment. The applicant reenlisted on 29 February 1964 for a period of 6 years.

On 14 April 1964 nonjudicial punishment was imposed against the applicant for being AWOL (11 hours). His punishment consisted of a reduction to E-3 (suspended for 6 months), a forfeiture of pay and extra duty.

On 25 May 1966 nonjudicial punishment was imposed against the applicant for being absent from his place of duty. His punishment consisted of a forfeiture of pay.

On 31 May 1966 nonjudicial punishment was imposed against the applicant for being absent from formation, absent from duty and he was found sleeping in bed by the First Sergeant. His punishment consisted of a reduction to pay grade E-4 and restriction.

The applicant went AWOL on 29 August 1966 and was apprehended by civil authorities and returned to military control on 17 December 1970.

On 3 June 1971 the applicant requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.

The unit commander recommended that the applicant’s request for discharge be approved and that he be furnished an undesirable discharge.

On 24 June 1971 the separation authority did not approve the applicant’s request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.




On 17 August 1971 the applicant was convicted by a general court-martial of being AWOL from 29 August 1966 to 17 December 1970. He was sentenced to a dishonorable discharge, a reduction to pay grade E-1 and to be confined at hard labor for eight months. Service of the sentence to confinement at hard labor was deferred on 18 August 1971. The applicant went AWOL on 16 September 1971 and the deferment of confinement at hard labor was rescinded effective
12 November 1971. The General Court-martial convening authority approved the sentence and the record of trial was forwarded to The Judge Advocate General of the Army for review by a Court of Military Review.

On 30 January 1973 the U.S. Army Court of Military Review set aside the action of the convening authority dated 12 November 1971. The record of trial was returned to The Judge Advocate General for a new review and action by a different Staff Judge Advocate and convening authority.

On 16 May 1973 the new convening authority approved the sentence adjudged on 17 August 1971. The record of trial was forwarded to The Judge Advocate General of the Army for review by the Court of Military Review.

On 18 July 1973 the U.S. Court of Military Review affirmed the sentence adjudged on 17 August 1971.

On 26 September 1973 the applicant was apprehended by civil authorities.

The applicant’s appellate review was completed on 27 September 1973.

Accordingly, on 15 November 1973 the applicant was discharged with a dishonorable discharge under the provisions of Army Regulation 635-200, chapter 11, pursuant to the sentence of a general court-martial. He had served
5 years, 4 months and 8 days of total active service with 1272 days lost and
1079 days lost subsequent to his normal expiration term of service.

There is no indication in the available records to show that the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. Chapter 11, in effect at the time, provides for dishonorable and bad conduct discharges. The regulation states, in pertinent part, that a member will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed.



The U.S. 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 requests a 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 that no factors should be established which would require automatic change or denial of a change in discharge.

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 considered the applicant’s contention that he was not afforded due process. However, evidence of record shows that the applicant pled not guilty and was convicted by a general court-martial of a lengthy AWOL period. The applicant has failed to show that the court-martial proceedings and his appellate process were not conducted in accordance with law and regulations applicable at the time or that he was denied due process.

2. The Board also considered the applicant’s contention that he thought his discharge would be summarily reviewed and upgraded without any response on his part. However, an upgrade is not automatic and there is no evidence which shows the applicant applied to the Army Discharge Review Board for a discharge upgrade within the 15-year statute of limitations.

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

4. The Board reviewed the applicant’s record of service and determined that his discharge does not warrant upgrading because of his poor disciplinary record, excessive amount of lost time, and the seriousness of the charge for which he was court-martialed.

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___ REB_____ JRS_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2001055422
SUFFIX
RECON
DATE BOARDED	20010814
TYPE OF DISCHARGE	(DD)
DATE OF DISCHARGE	19731115
DISCHARGE AUTHORITY	AR 635-200 Chapter 11
DISCHARGE REASON	Pursuant to the sentence of a general court-martial
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	110.0200
2.
3.
4.
5.
6.