MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 4 April 2002
         DOCKET NUMBER: AR2001062762

         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. Arthur A. Omartian		Chairperson
Mr. Roger W. Able		Member
Ms. Karen Y. Fletcher		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 discharge under other than honorable conditions be upgraded.

APPLICANT STATES: In effect, that his discharge should be upgraded and that marital and family problems were factors which led to his discharge. In support of his application, he submits two DD Forms 214 (Report of Transfer or Discharge) and four character reference letters.

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

The applicant enlisted in the Alabama Army National Guard on 17 November 1964 for a period of 6 years. He was ordered to active duty for training on
10 April 1965 and was honorably discharged from active duty on 25 August 1965 to complete his remaining service obligation in the Army National Guard. The applicant was honorably discharged from the Alabama Army National Guard on 22 November 1965 and assigned to the U.S. Army Reserve (USAR) Control Group (Annual Training) on 23 November 1965. On 9 January 1966, the applicant was honorably discharged from the USAR Control Group (Annual Training) for enlistment in the Regular Army. He entered active duty on
10 January 1966 for a period of 3 years.

On 19 December 1966, the applicant was convicted by a special court-martial of being absent without leave (AWOL) from 20 July 1966 to 6 October 1966 and from 29 October 1966 to 10 November 1966. He was sentenced to be confined at hard labor for 5 months and to forfeit $64 per month for 5 months. On
21 December 1966, the convening authority approved only so much of the sentence as provided for confinement at hard labor for 5 months and forfeiture of $37 per month for 5 months.

On 15 August 1967, the applicant was convicted by a special court-martial of being AWOL from 12 July 1967 to 15 July 1967 and from 16 July 1967 to 26 July 1967. He was sentenced to be confined at hard labor for 6 months, to forfeit
$37 per month for 6 months and to be reduced to E-1. On 29 August 1967, the convening authority approved the sentence but suspended the forfeiture of pay for 6 months. On 21 September 1967, the unexecuted portion of the sentence to confinement was suspended for 4 months.

On 22 May 1968, the applicant was convicted by a general court-martial of being AWOL from 2 February 1968 to 19 March 1968 and from 22 March 1968 to
18 April 1968. He was sentenced to be dishonorably discharged from the service, to forfeit all pay and allowances and to be confined at hard labor for
18 months. On 8 August 1968, the convening authority approved only so much of the sentence as provided for a bad conduct discharge, confinement at hard labor for 12 months and forfeiture of $90 pay per month for 12 months.

On 28 August 1968, the Board of Review of the Office of The Judge Advocate General of the Army affirmed the findings of guilty and only so much of the sentence as provided for a bad conduct discharge, forfeiture of $90 pay per month for 6 months and confinement at hard labor for 6 months.

The applicant’s separation orders, dated 18 October 1968, show he was discharged under other than honorable conditions under the provisions of Army Regulation 635-200 for conviction by a general court-martial.

Accordingly, the applicant was discharged under other than honorable conditions on 21 October 1968 under the provisions of Army Regulation 635-200 pursuant to a general court-martial. He had served 1 year, 6 months and 2 days of total active service with 599 days lost due to AWOL and confinement.

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 claim of marital and family problems which led to his discharge. However, these matters are not grounds for upgrading his discharge.

2. The Board also considered the character reference letters provided in support of the applicant’s claim. However, good post service conduct alone is not a basis for upgrading his discharge.

3. 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. The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.
4. The Board considered the applicant’s contention that his discharge should be upgraded. However, evidence of record shows that the applicant was sentenced to be discharged from the Army with a dishonorable discharge but the convening authority approved a bad conduct discharge. Evidence of record also shows that a bad conduct discharge was affirmed by the Board of Review of the Office of The Judge Advocate General of the Army. Yet, as a result of the applicant’s separation orders, he was discharged under other than honorable conditions, not with a bad conduct discharge.

5. The Board reviewed the applicant’s record of service which included two special court-martial convictions, one general court-martial conviction and
599 days lost 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 discharge or general discharge.

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

AAO____ RWA____ KYF_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2001062762
SUFFIX
RECON
DATE BOARDED	20020404
TYPE OF DISCHARGE	(UOTHC)
DATE OF DISCHARGE	19681021
DISCHARGE AUTHORITY	AR 635-200, paragraph 11-1b
DISCHARGE REASON	Pursuant to a general court-martial
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	110.0200
2.
3.
4.
5.
6.