MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 2 July 2002
         DOCKET NUMBER: AR2002067727

         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. Rosa M. Chandler		Analyst

The following members, a quorum, were present:

Ms. Karol A. Kennedy		Chairperson
Mr. Arthur A. Omartian		Member
Mr. Raymond J. Wagner		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 general discharge (GD), issued to him under the provisions of the Department of Defense (DOD) Special Discharge Review Program (SDRP) on 29 July 1977 by the Army Discharge Review Board (ADRB), be affirmed.

APPLICANT STATES: In effect, that he feels he is being unjustly treated because his under honorable conditions discharge is not being honored. He submits in support of his request a copy of his DD Form 214 (Report of Separation from Active Duty).

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

He was born on 14 November 1946 and was inducted into the Army of the United States for 2 years on 14 July 1966. Following completion of all required military training, he was assigned to a unit in Korea, with duty in military occupational specialty (MOS) 64A (Light Vehicle Driver).

On 24 July 1967, nonjudicial punishment (NJP), under the provisions of Article 15, Uniform Code of Military Justice, was imposed against the applicant for failure to obey a lawful order given by a noncommissioned officer (NCO) on 23 July 1967. His punishment-included reduction from pay grade E-3 to pay grade E-2, restriction and extra duty.

On 3 October 1967, NJP was imposed against the applicant for being absent from his unit on 2 October 1967. His punishment included forfeiture of pay, restriction and extra duty.

On 30 November 1967, he returned to the United States and was assigned to Fort Hood, Texas.

On 30 January 1968, NJP was imposed against the applicant for being absent without leave (AWOL) from his unit on 26 January 1968. His punishment included 7 days' extra duty and restriction.

On 12 March 1968, he was convicted by a summary court-martial of being AWOL from his unit from 5-15 February 1968. His sentence included forfeiture of $68.00 pay for 1 month and confinement at hard labor for 30 days.

On 1 May 1968, he was convicted by a special court-martial (SPCM) of indulging in intoxicating liquor to the point that he was incapacitated and could not properly perform his duties, and for striking a NCO on 8 April 1968. He was also convicted by a SPCM of failure to obey a lawful order issued by a NCO twice on 10 April 1968. His sentence included reduction from pay grade E-2 to pay grade E-1, forfeiture of $64.00 pay per month for 6 months and confinement at hard labor for 6 months. He remained in confinement from 10 April-3 June 1968.
On 4 June 1968, the applicant was discharged. His records do not contain all of the facts and circumstances surrounding the discharge process; however, they do contain a properly constituted DD Form 214 signed by the applicant at the time of discharge. The applicant’s DD Form 214 shows that he was discharged with an undesirable discharge (UD) for unfitness under the provisions of Army Regulation 635-212, due to being involved in frequent incidents of a discreditable nature with civil or military authorities. He had completed 1 year, 8 months, and 17 days of active military service and he had 67 days lost time due to being AWOL and in confinement.

On 29 July 1977, the ADRB upgraded the applicant’s UD to a GD under the provisions of the DOD SDRP.

On 26 July 1978, the ADRB reviewed the applicant’s discharge upgrade under the provisions of Public Law 95-126 and determined that the discharge met all procedural requirements for separation processing and that the rights of the applicant were protected throughout the discharge process. The ADRB considered the applicant’s overall record of service, the courts-martial, and the NJP’s that he had received for a variety of offenses and stated that they were serious offenses, especially the assault on a NCO. Therefore, the ADRB concluded that affirmation of the SDRP upgrade of 29 July 1977 was not warranted. The ADRB voted not to affirm the applicant’s discharge under uniform standards.

Army Regulation 635-212, in effect at the time set forth the basic authority for the separation of enlisted personnel who were found to be unfit or unsuitable for military service. The regulation further provided, in pertinent part, that service members discharged for unfitness would normally be furnished a UD unless circumstances warranted a general or honorable discharge.

On 4 April 1977, the Department of Defense (DOD) directed the Services to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973. This program, entitled the DOD Special Discharge Review Program (SDRP), required, in the absence of compelling reasons to the contrary, that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge. Consideration of other factors, including possible personal problems which may have contributed to the acts which led to the discharge, and a record of good citizenship since the time of discharge would also be considered upon application by the individual.


In October 1978, Public Law 95-126 was enacted. This legislation required that service Departments establish historically consistent, uniform standards for discharge reviews. Previously upgraded discharges under the SDRP and other programs were reconsidered using the uniform standards. Those individuals whose SDRP upgrades were not affirmed upon review under the historically consistent uniform standards were not entitled to VA benefits, unless they had been entitled to such benefits before their SDRP review.

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 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.

2. The available records show that the applicant was discharged for unfitness under the provisions of Army Regulation 635-212, due to unfitness. Some of the facts and circumstances surrounding the discharge process are missing, however, the Board presumes regularity in the discharge process. The applicant has provided no information that would indicate the contrary.

2. The Board notes the upgrade taken by the ADRB on 29 July 1977 under the SDRP; however, this Board concurs with the findings and conclusions of the ADRB in its decision not to affirm the discharge upgrade under the provisions of Public Law 95-126 and the established uniform standards in July 1978.

3. The Board took into consideration the applicant’s contention and his entire period of service and concluded that it was not sufficient to warrant an affirmation of his discharge.

4. 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

__kak___ __aao___ __rjw___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002067727
SUFFIX
RECON
DATE BOARDED	20020702
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	19680604
DISCHARGE AUTHORITY	AR 635-212
DISCHARGE REASON	A51.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	144.5100
2.
3.
4.
5.
6.