MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 10 January 2002
         DOCKET NUMBER: AR2001063940

         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. Fred N. Eichorn		Chairperson
Mr. Ted S. Kanamine		Member
Mr. John T. Meixell		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.

APPLICANT STATES: In effect, that he was told that he could get his discharge changed after one year but his discharge was burned shortly thereafter.

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

The applicant was inducted on 22 April 1968. He successfully completed basic training. While in advanced individual training, the applicant went absent without leave (AWOL) on 3 July 1968 and returned to military control on 9 October 1968.
The applicant was convicted by a special court-martial on 25 October 1968 of being AWOL from 3 July 1968 to 9 October 1968. He was sentenced to be confined at hard labor for 4 months and to forfeit $54 pay per month for
4 months. On 25 October 1968, the convening authority approved the sentence but suspended the sentence to confinement for 4 months.

The applicant went AWOL on 8 November 1968 and returned to military control on 29 April 1969. On 9 May 1969, the applicant was convicted by a special court-martial of being AWOL from 8 November 1968 to 29 April 1969. He was sentenced to be confined at hard labor for 6 months and to forfeit $70 pay per month for 6 months. On 9 May 1969, the convening authority approved the sentence.

On 9 August 1969, nonjudicial punishment was imposed against the applicant for being AWOL from 18 July 1969 to 7 August 1969. His punishment consisted of a forfeiture of pay.

The applicant went AWOL on 1 September 1969 and remained away until he was apprehended by military authorities on 14 February 1972. Charges were preferred against the applicant on 24 February 1972 for the AWOL period.

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; that he may be ineligible for many or all Army benefits administered by the Veterans Administration; 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 expect to encounter substantial prejudice in civilian life because of an undesirable discharge. The applicant elected to submit a statement in his own behalf. In summary, the applicant stated that he separated himself from the military because he could not adjust to the military environment. He had several encounters with military authorities and he stated that they stemmed from his inability to be regimented. The applicant also stated that his family problems contributed considerably to this offense.

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

On 13 March 1972, the separation authority approved the applicant’s request for discharge and directed that he be issued an undesirable discharge.

Accordingly, the applicant was discharged under other than honorable conditions on 21 March 1972 under the provisions of Army Regulation 635-200, chapter 10. He had served 3 months and 28 days of total active service with 588 days lost due to AWOL and confinement.

There is no evidence in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

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 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.

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. The Board considered the applicant’s contention that he was told that he could get his discharge changed after one year. 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.

2. 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.

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

4. The Board reviewed the applicant’s record of service which included one nonjudicial punishment, two special court-martial convictions and 588 days of lost time 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.

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

FNE____ TSK_____ JTM_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2001063940
SUFFIX
RECON
DATE BOARDED	20020110
TYPE OF DISCHARGE	(UOTHC)
DATE OF DISCHARGE	19720321
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.