MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 30 August 2001
         DOCKET NUMBER: AR2001056209

         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. Raymond V. O’Connor		Chairperson
Mr. Christopher J. Prosser		Member
Ms. Linda D. Simmons		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 be upgraded to honorable or general.

APPLICANT STATES: In effect, that he should be pardoned because the things he did were done in protest to the Vietnam War. He contends that he should not be branded as undesirable because of the way he chose to make his stand against the Vietnam War when people who ran away to Canada and refused induction (draft dodgers) were pardoned. In support of his application, he submits a copy of the Presidential Proclamation of Pardon, Proclamation 4483 and a copy of Proclamation of Pardon Executive Order 11967.

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

The applicant was inducted on 4 May 1971.

While in basic training, on 21 September 1971, the applicant was convicted by a summary court-martial of being absent without leave (AWOL) from 9 July 1971 to 12 July 1971 and from 13 July 1971 to 25 August 1971. He was sentenced to be confined at hard labor for 20 days and to forfeit $80 per month for 1 month. On 23 September 1971 the convening authority approved the sentence but suspended forfeitures in excess of $40 pay per month for 1 month until
21 November 1971.

On 21 September 1971 the applicant went AWOL and returned to military control on 6 February 1972. Charges were preferred against the applicant on
11 February 1972 for being AWOL.

On 9 February 1972, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10. He indicated in his request that he understood he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate. He acknowledged that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the VA and that he may be deprived of his rights and benefits as a veteran under both Federal and State law. He also acknowledged that he may encounter substantial prejudice in civilian life by reason of an undesirable discharge. Additionally, he elected to submit a statement in his own behalf. In summary, the applicant stated that he was unable to adapt to military life, that he had a fiancee, child and job waiting for him and that he wanted out of the Army.

The intermediate commander recommended approval of the applicant’s request for discharge and that he be furnished an undesirable discharge.



On 18 February 1972 the suspended portion of the applicant’s summary court-martial was vacated.

On 29 February 1972 the separation authority approved the applicant’s request for discharge and directed that he be furnished an undesirable discharge.

Accordingly, the applicant was discharged under other than honorable conditions on 14 March 1972 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service. He had served 3 months and 5 days of total active service with 216 days of lost time due to AWOL and confinement.

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.

The applicant provided a copy of Presidential Proclamation 4483 which provides for granting pardons for violations of the Military Selective Service Act between
4 August 1964 and 28 March 1973. He also provided a copy of the Proclamation of Pardon Executive Order 11967 relating to violations of the Military Selective Service Act between 4 August 1964 and 28 March 1973.

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. A discharge under other than honorable conditions is normally considered appropriate.

The Military Selective Service Act, in pertinent part, provides for the draft law.

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 considered the applicant’s contention that he should be pardoned in accordance with Presidential Proclamation 4483 or Proclamation of Pardon Executive Order 11967. However, evidence of record shows that the applicant was inducted on 4 May 1971. There is no evidence of record, and the applicant has provided no evidence, which shows he violated the Military Selective Service Act (draft law).

2. The Board also considered the applicant’s contention that his discharge should be upgraded because draft dodgers were pardoned and the things he did were done in protest to the Vietnam War. However, the Board considers each case individually and on its own merit and renders decisions based on the unique facts and circumstances of each particular case.

3. The Board reviewed the applicant’s brief undistinguished record of service and determined that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, the applicant is not entitled to an honorable discharge.

4. The Board also determined that the applicant’s military record which included one summary court-martial conviction and 216 days of lost time was not satisfactory. Therefore, the applicant is not entitled to a general discharge.

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.

6. The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

7. 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.

8. 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___ CJP_____ LDS_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2001056209
SUFFIX
RECON
DATE BOARDED	20010830
TYPE OF DISCHARGE	(UOTHC)
DATE OF DISCHARGE	19720314
DISCHARGE AUTHORITY	AR 635-200 Chapter 10
DISCHARGE REASON	For the good of the service
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	110.0200
2.
3.
4.
5.
6.