MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 5 August 2003
         DOCKET NUMBER: AR2003087843

         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. Gerard W. Schwartz		Analyst

The following members, a quorum, were present:

M . Luther L. Santiful		Chairperson
M . Curtis L. Greenway		Member
M . Ronald J. Weaver		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: To have his under other than honorable conditions discharge upgraded to general under honorable conditions.

APPLICANT STATES: In effect, that he served well in the U. S. Army and was Absent Without Leave (AWOL) because he needed to care for his brother after his father was killed in a vehicle accident. He contends that after six months of AWOL and looking over his shoulder, he called a sergeant at Fort Ord and the Federal Bureau of Investigation (FBI) who said that no one by his name was on an AWOL list. He was also told that if he had not been in trouble for the past fifteen years since his AWOL, that he could request to have his discharge upgraded.

The applicant provided a letter that stated the above issues.

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

On 30 March 1971 the applicant enlisted in the Regular Army for a period of three years. He completed the required training and was awarded military occupational specialty 76U (Communication Electronics Repair Parts Specialist). The highest pay grade achieved was E-4. During this enlistment the applicant was assigned to Vietnam from 23 September 1971 to 27 March 1972.

Applicant reenlisted on 24 August 1972 for an assignment close to San Francisco, California while stationed at Fort Gordon, Georgia. He was subsequently assigned to Travis Air Force Base, California.

On 3 December 1973, nonjudicial punishment (NJP) was imposed against the applicant for stealing another soldier's tires and hubcaps. His punishment consisted of forfeiture of $30.00, reduction to pay grade E-3, suspended for 180 days. On 3 January 1974 the reduction was vacated for unknown misconduct.

On 27 March 1974, NJP was imposed against the applicant for AWOL from 18 March 1974 to 25 March 1974. His punishment consisted of reduction to pay grade E-2.

Subsequent events are based on letters between the applicant and U. S. Army Enlisted Records and Evaluation Center. The applicant was to depart Headquarters, 13th Air Defense Artillery, Presidio of San Francisco, California, on 31 May 1974 for further assignment to Germany and the 21st Replacement Detachment, with a reporting date of 20 June 1974. There is no record of the applicant reporting to the 21st Replacement Detachment or that he was ever officially reported AWOL.

On 16 July 1979 the applicant wrote a letter to the Secretary of the Army explaining the fact that he was AWOL and he believed there was no record of him being in the Army.

On 24 September 1979, the applicant was sent a letter from the U. S. Army Enlisted Records and Evaluation Center stating he was charged with desertion effective 20 June 1974 and is eligible for discharge in absentia.

On 28 September 1979, the applicant responded to the above letter stating, in effect, that he was originally on orders to Greece and these were changed to Germany. Instead of going to Germany, he went to Los Angeles, California wh0ere he stayed to take care of his brother because his father was killed in a truck accident. Six months later he tried to turn himself in by calling Fort Ord and later the FBI.

On 6 November 1979 the applicant was notified that his statement did not contain sufficient evidence to warrant the issuance of a higher discharge. The applicant was further informed that he was discharged in absentia effective 6 November 1979 and was forwarded orders, DD Form 794A (Discharge Under Other than Honorable Conditions) and DD Form 214 (Certificate of Release or Discharge from Active Duty). Applicant was discharged under Army Regulation 635-200, chapter 14 (Misconduct - Desertion).

On 26 October 1981 the Army Discharge Review Board heard the applicant's appeal. The Board determined that he was properly and equitably discharged with an under other than honorable conditions discharge.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the soldier’s overall record. Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

Army Regulation 635-200 provides that an honorable discharge is a separation with honor. Issuance of an honorable discharge is predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration to the member's age, length of service and general aptitude. Where a member has served faithfully and performed to the best of his ability, an honorable discharge certificate should be furnished.

Army Regulation 635-200, 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.

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 to general under honorable conditions.

2. The Board reviewed the applicant's service records, which included two nonjudicial punishments for stealing another soldier's tires and hubcaps and AWOL. Additionally, the applicant was charged with desertion effective 20 June 1974. The Board concluded that the applicant committed several discrediting offenses which constituted a departure from the standards of conduct expected of soldiers in the Army.

3. The board considered the applicant’s quality of service during his entire enlistment. However, this service was determined not to be sufficiently meritorious to warrant an upgrade to the characterization of discharge.

4. The applicant states that he went AWOL to take care of his brother after his father died in a vehicle accident. The Board also noted that the applicant's first attempt to turn himself into authorities was after six months of AWOL and because he was tired of looking over his shoulder. The Board has concern for the applicant's circumstances but determined that the applicant had many legitimate avenues through which to obtain assistance or relief, without committing the misconduct which led to the separation action under review.

5. The US Army does not have, nor has it ever had, a policy to automatically upgrade discharges for personnel who have not been in trouble for 15 years since discharge. Each case is decided on its own merits when an applicant submits a DD Form 149 (Application For Correction of Military Record) requesting a change in discharge. Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable. The Board made no such determination in this case.

6. Based on the applicant's record of indiscipline, 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 applicant's service was not satisfactory; therefore, he did not meet the criteria for a general discharge.

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

8. 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.

9. 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

__LLS___ __CLG__ __RJW__ DENY APPLICATION

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

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INDEX

CASE ID	AR2003087843
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030805
TYPE OF DISCHARGE	(UOTHC)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	110.0200.0000
2.
3.
4.
5.
6.