MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 24 June 2003
         DOCKET NUMBER: AR2003084633

         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. Joyce A. Hall		Analyst

The following members, a quorum, were present:

Ms. Margaret K. Patterson		Chairperson
Mr. Ronald E. Blakely		Member
Mr. Frank C. Jones		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: That his under other than honorable conditions discharge be upgraded to honorable.

APPLICANT STATES: In effect, that former President Nixon upgraded all discharges like his to honorable. His grandfather died and he wanted to attend his funeral so he went absent without leave (AWOL) for one day. The Veterans Medical Center, Dallas is refusing him healthcare benefits although he was treated there previously, approximately twenty years ago. He would like an expeditious upgrade if at all possible. He is in desperate need of healthcare and he has zero income.

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

On 13 January 1966, he enlisted in the Regular Army for a period of 3 years.
He completed the required training and was awarded military occupational specialty 11D10 (Armor Intelligence Specialist). The highest pay grade he achieved was pay grade E-3.

On 3 October 1966, the applicant was convicted by a special court-martial (SPCM) of being AWOL from 2 August to 5 September 1966. He was sentenced to a forfeiture of $25.00 pay per month for 3 months, a reduction to pay grade
E-1, and 3 months hard labor without confinement (suspended until 4 January 1967).

On 31 January 1967, nonjudicial punishment under Article 15 , Uniform Code of Military Justice (UCMJ), was imposed against the applicant for dereliction in the performance of his duties on guard mount in that he did not know his General Orders. There is no record of punishment.

On 31 March 1967, the applicant was convicted by a SPCM of being AWOL
from 13 March to 21 March 1967. His approved sentence was 3 months hard labor without confinement, a forfeiture of $64.00 pay per month for 3 months, and a reduction to pay grade E-1.

On 16 May 1967, the applicant was convicted by a SPCM of being AWOL from
14 April to 9 May 1967. He was sentenced to confinement at hard labor for
6 months, a forfeiture of $64.00 pay per month for 6 months, and a reduction to
pay grade E-1.

On 18 May 1967, the applicant completed a separation physical and was found
qualified for separation. The applicant received a mental status evaluation and




was found mentally responsible and able to distinguish right from wrong and to
adhere to the right.

The facts and circumstances surrounding the applicant's discharge are not present in the available records. However, his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) indicates that on 22 June 1967 he was discharged under other than honorable conditions under the provisions of Army Regulation 635-212. He served 1 year, 1 month, and 21 days of total active service and he had 106 days of lost time due to AWOL and confinement.

Army Regulation 635-212, in effect at the time, set forth the basic authority for separation of enlisted personnel. The regulation provided, in pertinent part, that commanders would separate a member when, in the commander’s judgment, it was clearly established that the member would not develop sufficiently to become a satisfactory soldier. When separated for unfitness (misconduct), a discharge under other than honorable conditions was normally considered appropriate.

Army Regulation 635-200, paragraph 3-7, provided 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.

Army Regulation 635-200, paragraph 3-7, provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under
honorable conditions may be issued only when the reason for the soldier's
separation specifically allows such characterization.

Presidential Proclamation 4313, dated 16 September 1974, permitted Vietnam era deserters to turn themselves in without fear of judicial action and given an opportunity to request discharge for the good of the service.

The Department of Defense Special Discharge Review, also known as the President Carter Vietnam Program, permitted the upgrade of discharges for certain members who served in Vietnam or completed alternate service under the 16 September 1974 clemency program.

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 considered the applicant's request to upgrade his discharge from under other than honorable conditions.

2. The Board reviewed the available records pertaining to the applicant's service, which included three special court-martial convictions for 68 days of being AWOL and one nonjudicial punishment for dereliction in the performance of his duties.

3. Based on the applicant's record of indiscipline, the Board determined that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, the applicant did not meet the criteria for an honorable discharge. The Board also determined the applicant's service was not satisfactory; therefore, he did not meet the criteria for a general discharge.

4. The applicant appears to be referring to President Ford's Clemency Program or President Carter's Vietnam Program. However, he does not meet the eligibility criteria for an upgrade of his discharge under either of these programs.

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 and, in the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time. Therefore, 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

_MKP____ _REB__ _FCJ____ DENY APPLICATION

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

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INDEX

CASE ID	AR2003084633
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/06/24
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON	A51.00
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Carl W. S. Chun
ISSUES 1.	144.5000
2.
3.
4.
5.
6.