RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 SEPTEMBER 2005
      DOCKET NUMBER:  AR20040010992


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Gale J. Thomas                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James Hise                    |     |Chairperson          |
|     |Mr. Thomas O’Shaughnessy          |     |Member               |
|     |Mr. Patrick McGann                |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his military records be corrected to show
his upgraded discharge.

2.  The applicant states that his discharge was upgraded but that his
military records were never corrected.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation
from Active Duty) in support of his request.

CONSIDERATION OF EVIDENCE:

1.  In 1976, the Army Board for Correction of Military Records denied the
applicant’s petition to have his discharge upgraded.  The Board’s
proceedings in the 1976 case were not in records available to the Board.
In the absence of the original Board proceedings, this Board has accepted
the current application and elected to do a “De Novo” review in order to
provide the applicant with a clear understanding why his discharge has not
been upgraded.

2.  The applicant was inducted into the Army of the United States on 18
July 1968, for a period of 2 years.  He served in Okinawa from January 1969
to August 1970.

3.  On 10 September 1968, the applicant was convicted by a special court-
martial of being absent without leave (AWOL) from 23 June 1969 to 17 July
1969, of disobeying a superior noncommissioned officer, and of disobeying a
superior officer.  He was sentenced to 4 months confinement at hard labor,
and a forfeiture of pay for 4 months.

4.  On 19 January 1970, his commander preferred court-martial charge
against him for being AWOL from 20 December 1969 to 15 January 1970, from
16 January 1970 to 19 January 1970, and for escaping custody on 16 January
1970.

5.  On 17 February 1970, after consulting with legal counsel, the applicant
requested discharge from the service under the provisions of Army
Regulation
635-200, Chapter 10, for the good of the service in lieu of trial by court-
martial.



6.  On 16 March 1970, the appropriate separation authority approved the
discharge request and directed the issuance of an undesirable discharge.

7.  On 27 March 1970, the applicant was discharged under the provisions of
Army Regulation 635-200, Chapter 10, for the good of the service, in lieu
of trial by court-martial.  His DD Form 214 (Report of Separation from
Active Duty) indicates he had 1 year, 6 months and 3 days of active
service, and 65 days of lost time.

8.  Army Regulation 635-200, then in effect, set forth the basic authority
for the separation of enlisted personnel.  Chapter 10 of that regulation
provided, in pertinent part, that a member who had committed an offense or
offenses for which the authorized punishment included a punitive discharge
could at any time after the charges had been preferred, submit a request
for discharge for the good of the service in lieu of trial by court-
martial.  At the time of the applicant’s separation, the regulation
provided for the issuance of an under other than honorable conditions
discharge.

9.  The applicant applied to the Army Discharge Review Board (ADRB) to
upgrade his discharge.  On 8 April 1976, the ADRB reviewed and denied the
applicant’s request for upgrade.  The ADRB determined that the applicant’s
discharge was proper and equitable and that the discharge was properly
characterized as under other than honorable conditions.

10. On 14 July 1977, the applicant’s discharge was upgraded to general
under the Special Discharge Review Program (SDRP).

11.  On 1 September 1970, as required by Public Law 95-126, the Army
Discharge Review Board (ADRB) reviewed the applicant’s case and did not
affirm the SDRP decision.  The Board noted that the applicant’s
disciplinary record included two Article’s 15, one special court-martial
and 65 days of lost time due to AWOL.  The Board also noted the charges for
which the applicant requested discharge in lieu of court-martial.  The
Board considered the many acts of misconduct to outweigh any honorable
service the applicant may have had.

12.  The SDRP, 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.



13.  Public Law 95-126, enacted on 8 October 1977, provided generally, that
no VA benefits could be granted based on any discharge upgraded under the
SDRP.  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 the SDRP to
the uniform standards and to affirm only those cases where the case met
those standards.

DISCUSSION AND CONCLUSIONS:

1.  The applicant voluntarily requested discharge in 1970 to avoid trial by
court-martial.  He noted in his request that he was aware of the
ramifications of the undesirable discharge he was likely to receive.

2.  The discharge proceedings were conducted in accordance with the law and
regulations applicable at the time.  The original character of the
discharge was commensurate with the applicant’s overall record of military
service.  The fact that the SDRP upgraded the applicant’s discharge to
general and that it was not subsequently affirmed under Public Law 95-126
does not serve as a basis to now upgrade his discharge.  There is no
evidence, nor has the applicant provided any, which indicates the September
1978 decision by the ADRB under Public Law 95-126 was in error or unjust.

3.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

4.  In view of the foregoing, there is no basis for granting the
applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__JH____  __TO ___  ___PM __  DENY APPLICATION




BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented does not demonstrate the
existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.




                                  ______ James Hise________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040010992                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050920                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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