MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 18 July 2002
         DOCKET NUMBER: AR2002070104

         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. William Blakely		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor, Jr.		Chairperson
Mr. Stanley Kelley		Member
Mr. John P. Infante		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 undesirable discharge (UD) be upgraded to an honorable discharge (HD).

APPLICANT STATES: In effect, that he was told his discharge would be upgraded in six months. All charges against him were dropped and he was returned to duty with back pay and allowances.

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

He initially enlisted in the Regular Army for three years on 28 November 1966. On 29 November 1967, he was honorably discharged for the purpose of immediate reenlistment; and on 30 November 1967, he reenlisted and began the enlistment under review. He was trained and served in military occupational specialty (MOS) 72B (Communication Center Specialist) and the highest rank he attained while serving on active duty was specialist/E-4.

The applicant’s record reveals no acts of valor, significant achievement, or service warranting special recognition. However it does show that on 29 October 1969, he was convicted by a special court-martial of being absent without leave (AWOL) from 29 July 1969 to 18 September 1969. His approved sentence was to be reduced to private/E-1 and forfeit $100.00 for four months.

On 14 January 1970, the applicant was found guilty by a general court-martial of larceny and three specifications of wrongful appropriations. The resultant sentence included a forfeiture of all pay and allowances, a reduction to the rank and pay grade of private/E-1, confinement for 18 months, and a bad conduct discharge (BCD). On 17 April 1970, the convening authority approved the sentence and ordered all but the BCD portion of the sentence to be executed.

On 23 December 1970, the United States Army Court of Military Review examined the record of trial and found the military judge inquiry to be prejudicially deficient. The Court of Military Review set aside the findings of guilty and the resultant sentence, and returned the record of trial to the convening authority and authorized a rehearing if appropriate.

The specific facts and circumstances pertaining to the applicant’s processing subsequent to the setting aside of the general court-martial findings and sentence are not on file. However, the record does contain the applicant’s voluntary request to be discharged from the Army for the good of the service/in lieu of trial by court-martial, which would indicate that he was recharged with some offense(s) that carried a penalty of a punitive discharge. This document confirms the applicant, after consulting with legal counsel and being advised of the basis for a contemplated trial by court-martial, voluntarily requested to be discharged for the good of the service/in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200.
In connection with his discharge request, the applicant elected to submit a statement in his own behalf. It indicated that his court-martial conviction was set aside and the merchandise that he allegedly stole had been recovered by the Army. He further stated that the time he served at the US Disciplinary Barracks, Fort Leavenworth, Kansas, earned him a parole. He contended that his marriage had made him a person of great responsibility and stability. Further, he commented that his wife was having difficulty with her pregnancy, which required that he be with her, and he asked that his request for discharge be approved expeditiously.

On 14 April 1971, the appropriate authority approved the applicant’s separation request and directed that he receive an UD. On 23 April 1971, the applicant was discharged accordingly, after having served a total of 3 years, 6 months, and
11 days of active military service and accruing 320 days of lost time.

There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge 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. However, at the time of the applicant's separation the regulation provided for the issuance of an UD.

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 notes the applicant’s contentions that he was told his discharge would be upgraded within six months, that all charges against him were dropped, and that he was returned to active duty with back pay and allowances. However, the Board finds these factors are not sufficiently mitigating to warrant the requested relief.

2. The 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 submits an application requesting a change in discharge. Changes may be warranted if a Board determines that the characterization of service or the reason for discharge or both were improper or inequitable. There is no evidence to suggest that prior to this application, the applicant ever submitted a request that his discharge be upgraded.

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3. The evidence of record confirms that subsequent to the applicant’s general court-martial conviction being set-aside, he was charged with the commission of an offense(s) punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge. The Boards notes, after consulting with defense counsel, the applicant voluntarily requested separation from the Army in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200. This request was approved by the proper authority and the applicant was discharged accordingly.

4. The Board was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process, and that the type of discharge directed and the reason therefore were appropriate considering all the facts of the case.

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

__RVO__ ___SK___ __JPI___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002070104
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/07/18
TYPE OF DISCHARGE	(UD)
DATE OF DISCHARGE	19710423
DISCHARGE AUTHORITY	AR635-200, chapter 10 . . . . .
DISCHARGE REASON	In lieu of trial by CM
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	144.7200
2.
3.
4.
5.
6.