MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 5 September 2002
         DOCKET NUMBER: AR2002075234

         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
Mrs. Judy Blanchard-Miller		Analyst

The following members, a quorum, were present:

Ms. Celia L. Adolphi		Chairperson
Mr. Melvin H. Meyer		Member
Mr. John T. Meixell		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)

---

APPLICANT REQUESTS: In effect, that his undesirable discharge (UD) be upgraded to an honorable discharge.

APPLICANT STATES : In effect, that in the 1970's President Nixon (sic) with the approval of congress signed into law the Amnesty Act. The Amnesty Act (sic) gave all Vietnam era veterans with less than honorable, but not dishonorable discharge the right to have their discharge upgraded to honorable with the approval of the military boards. The applicant further states, that because the government promised to take care of their veterans, he should qualify for an upgrade. The applicant also states, that he submitted as evidence four documents in support of his application. The Board received with his application a copy of his Armed Forces of the United States Report of Transfer or Discharge (DD Form 214) and a copy of a DD Form 293.

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

On 5 April 1966, the applicant enlisted in the Regular Army for 3 years. He completed the required training and was awarded military occupational specialty 52A10 (Powerman). The highest grade he achieved was pay grade E-3.

On 1 September 1966, the applicant accepted nonjudicial punishment (NJP), under Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from 19 to 31 August 1966. His imposed punishment was a forfeiture of $30.00 pay, 14 days restriction and extra duty.

On 31 October 1966, the applicant was convicted by a special court-martial (SPCM) of being AWOL from 9 September to 6 October 1966. He was sentenced to confinement at hard labor for 3 months, a forfeiture of $60.00 pay per month for 3 months and a reduction to pay grade E-1.

Between September 1967 and December 1968, the applicant accepted four NJPs under Article 15, UCMJ, for three occasions of disobeying a lawful order and for the wrongful damage of private property. His punishment included forfeitures, restrictions, extra duty and a reduction to pay grade E-2.

On 15 December 1968, the applicant was convicted by a SPCM of being AWOL from 9 to 18 October 1968. He was sentenced to a forfeiture of $50.00 pay and hard labor without confinement for 45 days.

On 17 January 1969, the applicant was convicted by a SPCM of being disrespectful to a commissioned officer. He was sentenced to confinement at hard labor for 6 months. On 3 February 1969, the portion of the sentence thereof adjudging confinement was suspended for 6 months.

On 18 February 1969, a mental and physical evaluation found the applicant fit for retention. He was found mentally responsible and able to distinguish right from wrong. He had no disqualifying mental or physical defects sufficient to warrant disposition through medical channels. He was considered mentally competent to participate in board proceedings.

On 25 February 1969, the company commander notified the applicant that he was being recommended for discharge under the provisions of Army Regulation 635-212, for unfitness. The commander’s recommendation was based on the applicant’s frequent incidents of a discreditable nature with military authorities.

On the same day, the applicant was advised by legal counsel of the basis for the contemplated separation action and the rights available to him. He waived consideration, personal appearance, and representation before a board of officers.

On 24 March 1969, the Commanding General approved the recommendation, waived further rehabilitation requirements and directed the issuance of a discharge under the provisions of Army Regulation 635-212, for unfitness with an Undesirable Discharge Certificate.

On 8 April 1969, the applicant was discharged in pay grade E-1, under the provisions of Army Regulation 635-212, for unfitness with an Undesirable Discharge Certificate. He had completed 2 years, 10 months and 3 days of creditable active service.

Army Regulation 635-212, in effect at the time set forth 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. A discharge UD was normally considered appropriate.

On 18 December 1974, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

DOD Special Discharge Review Program (SDRP) dated 4 April 1977. This program was based on a memorandum from the Secretary of Defense Brown although it is often referred as the "Carter Program". Specifically, under this program, former service members who received UD's or GD's during the period of 4 August 1964 and 28 March 1973 were eligible for review. Individuals who received UD's during the RVN era would have their discharges upgraded if they met any one of the following criteria. (1). Wounded in combat. (2). Received a military decoration, other than a service medal. (3). Successfully completed an assignment in South East Asia or in the Western Pacific in support of operations in South East Asia. (4). Completed alternate service or was excused from completion of alternate service under the clemency program instituted on 16 September 1974. (5). Received an HD from a previous tour of military service.
(6). Had a record of satisfactory active military service for 24 months prior to discharge. Individuals could also qualify for upgrading whenever the Board believes such upgrading is appropriate based on all the circumstances of a particular case and on the quality of civilian record made since discharge.

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 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.

3. The contentions of the applicant have been noted. The program that the applicant is referring to is the DOD Special Discharge Review Program (SDRP). This program was based on a memorandum from the Secretary of Defense Brown although it is often referred to as the "Carter Program". Under this program, the former service members who received UD's or GD's during the period of 4 August 1964 and 28 March 1973 were eligible for review. The individuals who received UD's during the RVN era would have their discharges upgraded if they met certain criteria. The applicant did not meet the criteria for an upgrade of his discharge at that time.

4. The applicant has submitted neither probative evidence nor a convincing argument in support of the request.

5. Therefore the type of discharge directed and the reasons were appropriate considering all the facts of the case.

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 __ ___ MHM ___ __ JTM __ DENY APPLICATION



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



MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 5 September 2002
         DOCKET NUMBER: AR2002075234

         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
Mrs. Judy Blanchard-Miller		Analyst

The following members, a quorum, were present:

Ms. Celia L. Adolphi		Chairperson
Mr. Melvin H. Meyer		Member
Mr. John T. Meixell		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)

---

APPLICANT REQUESTS: In effect, that his undesirable discharge (UD) be upgraded to an honorable discharge.

APPLICANT STATES : In effect, that in the 1970's President Nixon (sic) with the approval of congress signed into law the Amnesty Act. The Amnesty Act (sic) gave all Vietnam era veterans with less than honorable, but not dishonorable discharge the right to have their discharge upgraded to honorable with the approval of the military boards. The applicant further states, that because the government promised to take care of their veterans, he should qualify for an upgrade. The applicant also states, that he submitted as evidence four documents in support of his application. The Board received with his application a copy of his Armed Forces of the United States Report of Transfer or Discharge (DD Form 214) and a copy of a DD Form 293.

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

On 5 April 1966, the applicant enlisted in the Regular Army for 3 years. He completed the required training and was awarded military occupational specialty 52A10 (Powerman). The highest grade he achieved was pay grade E-3.

On 1 September 1966, the applicant accepted nonjudicial punishment (NJP), under Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from 19 to 31 August 1966. His imposed punishment was a forfeiture of $30.00 pay, 14 days restriction and extra duty.

On 31 October 1966, the applicant was convicted by a special court-martial (SPCM) of being AWOL from 9 September to 6 October 1966. He was sentenced to confinement at hard labor for 3 months, a forfeiture of $60.00 pay per month for 3 months and a reduction to pay grade E-1.

Between September 1967 and December 1968, the applicant accepted four NJPs under Article 15, UCMJ, for three occasions of disobeying a lawful order and for the wrongful damage of private property. His punishment included forfeitures, restrictions, extra duty and a reduction to pay grade E-2.

On 15 December 1968, the applicant was convicted by a SPCM of being AWOL from 9 to 18 October 1968. He was sentenced to a forfeiture of $50.00 pay and hard labor without confinement for 45 days.

On 17 January 1969, the applicant was convicted by a SPCM of being disrespectful to a commissioned officer. He was sentenced to confinement at hard labor for 6 months. On 3 February 1969, the portion of the sentence thereof adjudging confinement was suspended for 6 months.

On 18 February 1969, a mental and physical evaluation found the applicant fit for retention. He was found mentally responsible and able to distinguish right from wrong. He had no disqualifying mental or physical defects sufficient to warrant disposition through medical channels. He was considered mentally competent to participate in board proceedings.

On 25 February 1969, the company commander notified the applicant that he was being recommended for discharge under the provisions of Army Regulation 635-212, for unfitness. The commander’s recommendation was based on the applicant’s frequent incidents of a discreditable nature with military authorities.

On the same day, the applicant was advised by legal counsel of the basis for the contemplated separation action and the rights available to him. He waived consideration, personal appearance, and representation before a board of officers.

On 24 March 1969, the Commanding General approved the recommendation, waived further rehabilitation requirements and directed the issuance of a discharge under the provisions of Army Regulation 635-212, for unfitness with an Undesirable Discharge Certificate.

On 8 April 1969, the applicant was discharged in pay grade E-1, under the provisions of Army Regulation 635-212, for unfitness with an Undesirable Discharge Certificate. He had completed 2 years, 10 months and 3 days of creditable active service.

Army Regulation 635-212, in effect at the time set forth 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. A discharge UD was normally considered appropriate.

On 18 December 1974, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

DOD Special Discharge Review Program (SDRP) dated 4 April 1977. This program was based on a memorandum from the Secretary of Defense Brown although it is often referred as the "Carter Program". Specifically, under this program, former service members who received UD's or GD's during the period of 4 August 1964 and 28 March 1973 were eligible for review. Individuals who received UD's during the RVN era would have their discharges upgraded if they met any one of the following criteria. (1). Wounded in combat. (2). Received a military decoration, other than a service medal. (3). Successfully completed an assignment in South East Asia or in the Western Pacific in support of operations in South East Asia. (4). Completed alternate service or was excused from completion of alternate service under the clemency program instituted on 16 September 1974. (5). Received an HD from a previous tour of military service.
(6). Had a record of satisfactory active military service for 24 months prior to discharge. Individuals could also qualify for upgrading whenever the Board believes such upgrading is appropriate based on all the circumstances of a particular case and on the quality of civilian record made since discharge.

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 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.

3. The contentions of the applicant have been noted. The program that the applicant is referring to is the DOD Special Discharge Review Program (SDRP). This program was based on a memorandum from the Secretary of Defense Brown although it is often referred to as the "Carter Program". Under this program, the former service members who received UD's or GD's during the period of 4 August 1964 and 28 March 1973 were eligible for review. The individuals who received UD's during the RVN era would have their discharges upgraded if they met certain criteria. The applicant did not meet the criteria for an upgrade of his discharge at that time.

4. The applicant has submitted neither probative evidence nor a convincing argument in support of the request.

5. Therefore the type of discharge directed and the reasons were appropriate considering all the facts of the case.

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 __ ___ MHM ___ __ JTM __ DENY APPLICATION



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

---

INDEX

CASE ID	AR2002075234
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/09/05
TYPE OF DISCHARGE	(UD)
DATE OF DISCHARGE	1969/04/08
DISCHARGE AUTHORITY	AR635-212 . . . . .
DISCHARGE REASON	A50.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.144.5000
2.
3.
4.
5.
6.

---

INDEX

CASE ID	AR2002075234
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/09/05
TYPE OF DISCHARGE	(UD)
DATE OF DISCHARGE	1969/04/08
DISCHARGE AUTHORITY	AR635-212 . . . . .
DISCHARGE REASON	A50.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.144.5000
2.
3.
4.
5.
6.