MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:             12 August 1998                
	DOCKET NUMBER:     AC98-09152

	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.  The following members, a quorum, were present:

	Mr.	Fred N. Eichorn		Chairperson	
	Mr.	Raymond V. O’Connor Jr.		Member	
	Mr.	George D. Paxson		Member	

	Also present, without vote, were:

	Mr.	Loren G. Harrell		Director	
	Mr.	Joseph A. Adriance		Analyst	

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	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 (HD).

APPLICANT STATES:  In effect, that he was supposed to have his discharge upgraded to HD after 2 years; and that he is now 45 years old and not a kid anymore.

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

On 29 September 1970 the applicant entered the Regular Army for a period of two years at the age of 18.  He completed basic training at Fort Ord, California and advanced individual training (AIT) at Fort Sill, Oklahoma.  Upon completion of AIT the applicant was awarded military occupational specialty 13A (Cannoneer) and was assigned to overseas duty in Germany as his first permanent duty station.

The applicant’s record documents no individual acts of valor, achievement, or service warranting special recognition, and indicates the highest grade he held on active duty was private/E-2.  Although the records are not complete they do  document a history of disciplinary infractions which includes the applicant’s  acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the UCMJ.

On 6 July 1971 the applicant accepted an NJP with three specifications.  The first was for disobeying a lawful order from a superior commissioned officer on 14 June 1971; the second was for absenting himself from his place of duty on
14 June 1971; and the third was for being disrespectful in language to a superior noncommissioned officer on 17 June 1971.  The resultant punishment included a reduction in grade to private/E-1 a forfeiture of $50.00 per month for 2 months; and 30 days of restriction and extra duty.

The applicant’s record is void of facts and circumstances concerning the events that led to a discharge from the Army.  However, the record does contain information that court-martial charges were preferred against the applicant as evidenced by a DA Form 268 (Report of Suspension of Favorable Personnel Actions) transferring the action to Fort Dix, New Jersey based on the applicant having an approved Chapter 10 discharge.  The record does contain a properly constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) which was authenticated by the applicant.  The DD Form 214 
shows the applicant was discharged under the provisions of Chapter 10, AR 635-200, for the good of the service, in lieu of trial by court-martial.  In connection with such a discharge, the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  Procedurally, the applicant was required to consult with defense counsel, and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  In doing so, the applicant would have had to admit guilt to the stipulated offenses under the UCMJ. 

The DD Form 214 documents that the applicant was discharged with a UD on
26 August 1971 after completing 10 months and 28 days of active military service.

There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the 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 are 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 a UD.

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 noted that the applicant’s record contains a properly constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) which was authenticated by the applicant.  This document identifies the reason and characterization of the discharge and the Board presumed government regularity in the discharge process. The discharge proceedings were conducted in accordance with law and regulation applicable at the time.  The reason for and the character of the discharge are commensurate with the applicant's overall record of military service.

2.  The Board considered the applicant’s contention that his discharge was supposed to be upgraded to an HD in 2 years.  However, the US Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each 
case is decided on its own merits when an applicant submits a DD Form 293 and or a DD Form 149 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 Defense Discharge Review Standards specifically state that no factors should be established that require automatic change or denial of a change in discharge. 

3.  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 the aforementioned requirement.

4.  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

________  ________  ________  DENY APPLICATION

						Loren G. Harrell
						Director