MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 30 October 2001
         DOCKET NUMBER: AR2001057942

         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. Beverly A. Young		Analyst

The following members, a quorum, were present:

Ms. Celia L. Adolphi		Chairperson
Mr. Arthur A. Omartian		Member
Mr. Harry B. Oberg		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 under other than honorable conditions (UOTHC) discharge be upgraded.

APPLICANT STATES: In effect, that he had a fight with an noncommissioned officer (NCO).

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

The applicant enlisted in the Army on 24 March 1972 for a period of two years. He completed basic combat training at Fort Jackson, South Carolina. He was further assigned to Fort Gordon, Georgia, for advanced individual training (AIT).

Records show the applicant was absent without leave (AWOL) from 19 July 1972 to 18 August 1972. He was AWOL again from 25 August 1972 to 14 September 1972.

Charges were preferred against the applicant on 6 October 1972 for his two periods of AWOL and for failing to go to his appointed place of duty on two separate occasions.

The applicant consulted with legal counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10. In doing so, he admitted guilt to the offenses charged and acknowledged that he might encounter substantial prejudice in civilian life and that he might be ineligible for many or all benefits administered by the Veterans Administration if an undesirable discharge were issued. The applicant did not submit a statement in his own behalf.

The separation authority’s approval of the request for discharge is not in the applicant’s records. However, the applicant’s DD Form 214, indicates that he was discharged on 30 October 1972, under Army Regulation 635-200, chapter 10, for the good of the service with an under other than honorable conditions discharge. He had 5 months and 2 days of creditable service with 65 days of lost time due to AWOL.

On 3 June 1977, the applicant applied to the Army Discharge Review Board for an upgrade of his discharge to honorable. The applicant’s discharge was upgraded to general under honorable conditions under the Department of Defense Special Discharge Review Program. The decision was based on the fact that the applicant ‘s record of service was not sufficiently meritorious to warrant an honorable discharge.

On 25 April 1978, as required by Public Law 95-126, the Army Discharge Review Board reviewed the applicant’s case and voted not to affirm the Special Discharge Review Program discharge.
The applicant’s personnel records contain an Army Discharge Review Board Case Report and Directive, dated 25 April 1978. This document shows that the applicant was punished under Article 15, Uniform Code of Military Justice for misconduct on 10 July 1972; however, this Article 15 is not in the applicant’s records.

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. However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

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 one of seven specified criteria.

Public Law 95-126. This law, enacted on 8 October 1977, provided generally, that no VA benefits could be granted based on any discharge upgraded under President Ford’s memorandum of 19 January 1977, or the DOD Special Discharge Review Program. It required the establishment of uniform published standards which did not provide for automatically granting or denying a discharge upgrade for any case or class of cases. The services were then required to individually compare each discharge previously upgraded under one of the special discharge review programs to the uniform standards and to affirm only those cases where the case met those standards.

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.

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 the absence of evidence to the contrary, it must be presumed that 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.

2. The applicant’s under other than honorable conditions discharge was upgraded to general under the Special Discharge Review Program on 3 June 1977. However, this discharge was not affirmed upon review by the Army Discharge Review Board.

3. The ABCMR reviewed all of the facts in this case and the applicant’s record of service which included 65 days of lost time and charges for failing to go to his appointed place of duty. Based on this review, the Board determined that the applicant’s quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, there is no basis for upgrading the applicant’s discharge.

4. 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.

5. 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

CLA_____ HBO_____ AAO_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2001057942
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20011030
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	19721030
DISCHARGE AUTHORITY	AR635-200,CHAPTER10
DISCHARGE REASON	FOR THE GOOD OF THE SERVICE
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	144.0000
2.
3.
4.
5.
6.