MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 13 JUNE 2002
         DOCKET NUMBER: AR2002068216

         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
Mr. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Ms. Celia L. Adolphi		Chairperson
Ms. Barbara J. Ellis		Member
Mr. Donald P. Hupman, Jr.		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 general discharge be upgraded to honorable.
APPLICANT STATES: That he has lived with his discharge for over 30 years. Since 11 September 2001 he has felt differently about the military and now wishes that he would have understood the discharge that he accepted. He has no evidence. He had problems in basic training. He was on emergency leave because of an illness in his family. He believes that his age, marital status, and family matters caused his problem. He has been a good citizen and really has had no problems because of his general discharge. Upgrading his discharge would give him a sense of fulfillment.

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

A judgment by the Circuit Court of Polk County in Florida shows that the applicant was divorced on 26 July 1968 with the applicant’s former wife being granted custody of his two year old son.

The applicant was inducted into the Army on 17 April 1969 and assigned to Fort Knox, Kentucky for training. The applicant was AWOL from 9 June 1969 through 29 July 1969 and received nonjudicial punishment under Article 15, UCMJ.

The applicant was AWOL from 9 September 1969 to 26 November 1969.

On 4 December 1969 court-martial charges were preferred against the applicant for the above mentioned period of AWOL.

On 7 January 1970 the applicant consulted with counsel and under the provisions of Army Regulation 635-200, chapter 10, requested discharge for the good of the service in lieu of trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge. He stated that he had not been subjected to any coercion with respect to the request for discharge, and that the had been advised of the implications of the discharge. He stated that he understood that he might be discharged under other than honorable conditions and that he might be furnished an Undesirable Discharge Certificate. He stated that he understood the nature and consequences of the under other than honorable conditions discharge that he might receive. He declined to submit statements in his own behalf.

On 29 January 1970 the separation authority approved the applicant’s request and directed that he be furnished an Undesirable Discharge Certificate.

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The applicant was discharged on 13 February 1970. He had 5 months and 6 days of service and 142 days of lost time.

On 20 May 1977 the applicant’s discharge was upgraded to under honorable conditions by the Army Discharge Review Board under the provisions of the DOD Special Discharge Review Program (SDRP).

On 5 August 1978 the applicant’s discharge was reviewed under the provisions of Public Law 95-126 and a determination was made that the change in the applicant’s characterization of service was warranted by the DOD directive. The board reviewed the applicant’s record and concurred with the decision of the Army Discharge Review Board of 20 May 1977, and determined that upgrade of his discharge was appropriate. The board based its decision primarily on the fact that the applicant was inducted with a moral waiver, and had never completed basic combat training before he began a series of AWOLs for which he was discharged. The board voted unanimously to affirm. The board noted that the applicant’s upgrade of his discharge by the SDRP was based on the applicant’s age, general aptitude, and length of service at time of his discharge, and because of possible personal problems.

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.

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, known as the DOD
Discharge Review Program (Special) (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

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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 denied Veterans Administration (VA) benefits to any former service member who had been AWOL for more than 180 consecutive days, or who had been classified as
a deserter or a conscientious objector. The DOD was required to establish historically consistent, uniform standards for discharge reviews. Reconsideration using these uniform standards was required for all discharges previously upgraded under the SDRP and certain other programs was required. Individuals whose SDRP upgrades were not affirmed upon review under these 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. The applicant was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and VA benefits. He was afforded the opportunity to submit statements in his own behalf, but he declined to do so. The discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with the applicant's overall record of military service.

2. The applicant's request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.

3. The Board notes that the SDRP granted relief in 1977 mainly because of his age and his personal problems. The applicant's contention that he was young and immature at the time is not sufficiently mitigating to warrant further relief. The Board notes that he was 24 years old at the time of his first AWOL. While the Board is empathetic, his good post service conduct is not sufficiently mitigating to warrant further relief.

4. The applicant’s discharge under conditions other than honorable was proper and deserved. His discharge, however, has been upgraded to under honorable conditions. The applicant has provided neither probative evidence nor a convincing argument in support of his request to further upgrade his discharge.

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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 that 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

__CLA __ __BJE __ __DPH __ DENY APPLICATION

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

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INDEX

CASE ID	AR2002068216
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020613
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.00
2.	360
3.
4.
5.
6.