MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 12 September 2002
         DOCKET NUMBER: AR2002074704

         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. Beverly A. Young		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Mr. Donald P. Hupman		Member
Mr. William D. Powers		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 under the Special Discharge Review Program (SDRP) be upgraded to honorable.

APPLICANT STATES: That his character of discharge is unjust. He submits a copy of his DD Form 214 (Report of Separation from Active Duty) in support of his application.

COUNSEL CONTENDS: The American Legion, as counsel for the applicant, states that the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, with his service characterized as "Other Than Honorable." Counsel states that the applicant's discharge was changed to under honorable conditions under the Department of Defense discharge review program. Counsel further stated that, the applicant completed his tour of duty in Vietnam where he served as a radio "tel" operator and his DA Form 20 indicates that his conduct and efficiency to be excellent during this period of time.

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

The applicant enlisted in the Regular Army on 19 June 1966 for a period of four years. He successfully completed basic and advanced individual training and was awarded military occupational specialty 05C (radio teletype operator). He served in Germany from 20 March 1967 through 15 September 1967 and in Vietnam from 2 November 1967 through 3 November 1968.

On various occasions between October 1966 and April 1967, the applicant received three nonjudicial punishments for disobeying a lawful order; for being AWOL from 7 to 16 January 1967; and for failing to obey a lawful order.

On 19 February 1968, the applicant was convicted by a summary court-martial of carelessly discharging a machine gun while on guard duty. He was sentenced to reduction to private E-2 and forfeiture of $25.00 pay for one month.

The applicant was convicted by a special court-martial on 13 June 1968 of being found asleep on guard duty. He was sentenced to confinement at hard labor for two months, forfeiture of $68.00 for two months and reduction to private E-1.

On 20 October 1968, he received nonjudicial punishment for sleeping on guard duty. He received nonjudicial punishment again on 15 April 1969 for failing to go to his appointed place of duty.

Charges were preferred against the applicant on 19 June 1970 for three specifications of AWOL (2 June 1969 to 3 June 1969; 4 June 1969 to 28 August 1969; and 4 October 1969 to 30 April 1970) and for escaping from military confinement on 4 October 1969.
The applicant consulted with legal counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10. In doing so, he admitted guilt to the offenses charged and acknowledged that he might encounter substantial prejudice in civilian life and that he might be ineligible for many or all benefits administered by the Veterans Administration if an undesirable discharge were issued. The applicant did not submit a statement in his own behalf.

On 8 July 1970, the separation authority approved the applicant’s request for discharge and directed issuance of an Undesirable Discharge Certificate.

Accordingly, the applicant was discharged on 8 July 1970 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial. He had 3 years, 1 month and 16 days of creditable service with 387 days of lost time due to AWOL and confinement.

In November 1974, the applicant applied to the Army Discharge Review
Board (ADRB) for an upgrade of his discharge. The ADRB determined that the applicant was properly discharged and denied the applicant's request.

The applicant applied to the ADRB again on 28 July 1977 for an upgrade of his discharge to honorable. The applicant’s discharge was upgraded to general under honorable conditions under the Department of Defense (DOD) SDRP. The decision was based on the fact that the applicant‘s record of service was not sufficiently meritorious to warrant an honorable discharge. The decision to upgrade the applicant's discharge to general under honorable conditions was not affirmed by the ADRB.

On 5 May 1978, as required by Public Law 95-126, the ADRB reviewed the applicant’s case and voted not to affirm the SDRP discharge.

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.

The Special Discharge Review Board Program, often referred to as the “Carter Program,” was announced on 29 March 1977. The program mandated upgrade of administrative discharges if the applicant met one of seven specified criteria.

Public Law 95-126 was enacted on 8 October 1977 and provided generally that no VA benefits could be granted based on any discharge upgraded under President Ford’s memorandum of 19 January 1977, or the DOD Special Discharge Review Program. It required the establishment of uniform published standards which did not provide for automatically granting or denying a discharge upgrade for any case or class of cases. The services were then required to individually compare each discharge previously upgraded under one of the special discharge review programs to the uniform standards and to affirm only those cases where the case met those standards.

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 applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights. The type of discharge directed and the reasons for his separation were appropriate considering all the facts of the case.

2. The applicant's discharge was upgraded to general under the SDRP on 28 July 1977.

3. The Board reviewed the applicant's record of service which included five nonjudicial punishments, a summary court-martial, a special court-martial, and 387 days lost and determined that the applicant’s quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, there is no basis for affirming his general discharge or for upgrading his discharge to honorable.

4. 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.

5. 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

JNS_____ DPH____ WDP____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002074704
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020912
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	19700708
DISCHARGE AUTHORITY	AR635-200,chapter 10
DISCHARGE REASON	For the Good of the Service – in lieu of trial by court-martial
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	144.0000
2.
3.
4.
5.
6.