MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 31 January 2002
         DOCKET NUMBER: AR2001064135

         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. Elzey J. Arledge		Member
Ms. Regan K. Smith		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 general.

APPLICANT STATES: That the record does not show his full accomplishments or goals and presents partial view of the facts leading to his discharge. He contends, in effect, that there was no trial, no court-martial, no chance to present a defense for his actions and that he was discharged before he had an opportunity to understand the proceedings. He states that he tried to engage the amnesty program aimed at all Vietnam era veterans but he could not prevail because the Army could not produce his records. He further states that in 1976 he contacted a veterans organization in New York who advised him that his discharge would be changed to general and that this status would result in an honorable discharge. He contends that a dishonorable discharge does not reflect his character during his service and certainly does not reflect his status since separation. In support of his application, he submits a letter of explanation, dated 8 October 2001.

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

Having prior service in the National Guard, the applicant enlisted in the Regular Army on 8 September 1965 for a period of 4 years. He trained as a field artillery basic crewman.

On 16 November 1966, nonjudicial punishment was imposed against the applicant for disobeying a lawful order from a superior noncommissioned officer and for being disrespectful in language toward a superior noncommissioned officer. His punishment consisted of restriction and extra duty.

The applicant’s DA Form 20 (Enlisted Qualification Record) shows that he was absent without leave (AWOL) from 5 May 1967 to 17 May 1967.

On 8 July 1967, the applicant was convicted by a special court-martial of disobeying a lawful order from a superior noncommissioned officer and two specifications of being disrespectful toward a superior noncommissioned officer. He was sentenced to be confined at hard labor for 6 months, forfeit $55 pay per month for 6 months and to be reduced to E-1. On 12 July 1967, the convening authority approved the sentence. On 21 August 1967, the unexecuted portion of the sentence to confinement was suspended effective 24 August 1967 for
5 months. On 12 October 1967, the suspended portion of the sentence to confinement was vacated.

On 21 November 1967, the applicant’s unit commander initiated a recommendation to discharge him from the service under the provisions of Army Regulation 635-212 for unfitness due to frequent incidents of a discreditable nature with military authorities. He cited that the applicant was resistant to all efforts of rehabilitation and authority; that he continually failed to produce work of any value to the unit; that he did not respect authority and did not understand that authority is necessary for the orderly function of the military. This letter also shows that the applicant had a total of five Article 15’s in that unit; however, the available records only contain one nonjudicial punishment.

On 9 December 1967, the applicant was notified of his pending separation under the provisions of Army Regulation 635-212 for unfitness. After consulting with counsel, the applicant waived consideration of his case by a board of officers and representation by counsel. He also elected not to submit a statement on his own behalf.

The intermediate commander recommended that the applicant be discharged under the provisions of Army Regulation 635-212 for unfitness and furnished an undesirable discharge.

On 20 December 1967, the separation authority approved the recommendation for separation under the provisions of Army Regulation 635-212 for unfitness and directed that the applicant be furnished an Undesirable Discharge Certificate.

Accordingly, the applicant was discharged under other than honorable conditions on 11 January 1968 for unfitness due to character and behavior disorders. He had served 2 years, 4 months and 28 days of total active service with 150 days lost time due to AWOL and confinement.

On 6 April 1976, the Army Discharge Review Board (ADRB) denied the applicant’s request for a discharge upgrade to honorable or general. The ADRB directed that the applicant’s Separation Program Designator on his DD Form 214 be corrected to reflect frequent incidents with a discreditable nature with civil or military authorities, instead of character and behavior disorders. A DD Form 215 (Correction to DD Form 214), prepared on 10 September 1976, amended item 11c (Reason and Authority) on the applicant’s DD Form 214.

On 22 January 1979, the ADRB denied the applicant’s request for a discharge upgrade to honorable.

Army Regulation 635-212, in effect at the time, set for the basic authority for the separation of enlisted personnel. Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness. An undesirable discharge was 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 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 contentions that there was no trial, no court-martial, no chance to present a defense for his actions and that he was discharged before he had an opportunity to understand the proceedings. However, evidence of record shows that on 9 December 1967 the applicant consulted with counsel, waived his rights before a board of officers and elected not to submit a statement on his own behalf.

2. The Board considered the applicant’s contention that he tried to engage the amnesty program aimed at all Vietnam era veterans but he could not prevail because the Army could not produce his records. However, this matter is not grounds for upgrading discharges.

3. The Board considered the applicant’s contention that in 1976 he contacted a veterans organization in New York who advised him that his discharge would be changed to general and that this status would result in an honorable discharge. However, the U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.

4. The Board also considered the applicant’s contention that a dishonorable discharge does not reflect his character during his service and certainly does not reflect his status since separation. However, evidence of record shows the applicant received a discharge under other than honorable conditions, not a dishonorable discharge.

5. The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

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

7. The Board reviewed the applicant’s record of service which included one special court-martial conviction, one nonjudicial punishment and 150 days of lost time and determined that his military record was not satisfactory. Therefore, the applicant is not entitled to a general discharge.

8. 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.

9. 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____ EJA_____ RKS____ DENY APPLICATION

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

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INDEX

CASE ID	AR2001064135
SUFFIX
RECON
DATE BOARDED	20020131
TYPE OF DISCHARGE	(UOTHC)
DATE OF DISCHARGE	19680111
DISCHARGE AUTHORITY	AR 635-212
DISCHARGE REASON	Unfitness due to frequent incidents with a discreditable nature with civil or military authorities
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	110.0200
2.
3.
4.
5.
6.