MEMORANDUM OF CONSIDERATION


         IN THE CASE OF
        

         BOARD DATE: 14 August 2003
         DOCKET NUMBER: AR2003087897

         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. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor		Chairperson
Mr. James E. Anderholm		Member
Ms. Linda M. Barker		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 a general, under honorable conditions discharge (GD).

APPLICANT STATES: In effect, that he was told that if his civilian behavior was good, his discharge would be automatically upgraded in five years. He also states that an upgrade to his discharge would allow him the dignity he deserves based on the changes he has made in his life. In support of his application, he provides seven character references attesting to his good behavior from family members and friends.

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

On 15 November 1968, he enlisted in the Regular Army for three years. He was trained and served in military occupational specialty (MOS) 62K (Grader Operator).

The applicant’s Enlisted Qualification Record (DA Form 20) shows that he was promoted to specialist four (SP4) on 30 December 1969, and that this was the highest grade he attained while service on active duty. It also shows that he was reduced to private first class (PFC) on 10 April 1970 and to private/E-2 (PV2) on 7 May 1970 as a result of misconduct and the resultant nonjudicial punishment (NJP) action taken under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ).

The DA Form 20 also shows that the applicant served in the Republic of Vietnam (RVN) from 7 July 1969 through 3 July 1970. However, other than receiving the service awards he was entitled to based on this RVN service, the record documents no acts of valor, significant achievement, or service warranting special recognition.

The applicant’s record does reveal an extensive disciplinary history that includes his acceptance of NJP on three separate occasions between 10 April and
19 May 1970. It also shows that he was convicted of two specifications of being absent without leave (AWOL) by a special court-martial on 3 June 1969.

On or about 8 September 1970, the applicant departed AWOL from his unit at Fort Hood, Texas. He remained away until on or about 8 January 1971, when he returned to military control at Fort Belvoir, Virginia. On 15 January 1971, the applicant departed AWOL from his unit at Fort Belvoir and remained away until returning to military control on or about 20 January 1971. On 2 February 1971, a court-martial charge was preferred against the applicant for these two periods of AWOL.

---

On 10 February 1971, the applicant consulted legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an UD discharge, and of the procedures and rights that were available to him. Subsequent to this counseling, the applicant voluntarily requested discharge, for the good of the service, in lieu of trial by court-martial.

In his request for discharge, the applicant acknowledged his understanding that he would be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

On 27 February 1971, the appropriate authority approved the applicant’s request for discharge in lieu of trial by court-martial, and directed that he receive an UD, and that he be reduced to the lowest enlisted grade. On 17 March 1971, the applicant was discharged accordingly.

The DD Form 214 issued to the applicant on the date of his separation confirms that he was discharged under the provisions of chapter 10, Army Regulation
635-200, in lieu of trial by court-martial. This document also confirms that at the time of his discharge the applicant had completed 1 year, 9 months, and 25 days of creditable active military service, and he had accrued 188 days of time lost due to AWOL.

There is no indication in the record that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade to 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 undesirable 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. The Boards notes the applicant’s contention that he was told that if his civilian behavior was good for five years, his discharge would be automatically upgraded. However, 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 a request for a change in discharge is submitted to either the ADRB or this Board.

2. The Board also carefully considered the supporting character references submitted by the applicant. However, while these statements do attest to his good post service conduct, this factor alone is not sufficiently mitigating to warrant an upgrade to his discharge.

3. The evidence of record shows the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge. The Board notes that after consulting with defense counsel, and being advised of the consequences of requesting an administrative discharge in lieu of court-martial which included the loss of VA benefits, the applicant voluntarily requested separation in lieu of trial by court-martial.

4. The Board is 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 character of his discharge accurately reflects his overall record of service. Therefore, the Board concludes that the requested relief is not warranted in this 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

__JA___ ___LB__ __RO__ DENY APPLICATION

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

---

INDEX

CASE ID	AR2003087897
SUFFIX
RECON
DATE BOARDED	2003/08/DD
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1971/03/17
DISCHARGE AUTHORITY	AR 635-200 C10
DISCHARGE REASON	In Lieu of Court Martial
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 189	110.0000
2.
3.
4.
5.
6.