PROCEEDINGS

	IN THE CASE OF:        

	BOARD DATE:            12 January 2000
	DOCKET NUMBER:   AR1999026613

	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. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Ms. Irene N. Wheelwright		Member	
	Mr. Luther L. Santiful		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A -  Application for correction of military 
                             records
	Exhibit B -  Military Personnel Records (including
	                  advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that his general, under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD). 

3.  The applicant states, in effect, that the misconduct which resulted in his under honorable conditions characterization of service was an isolated incident.  He contends this incident took place when he had a disagreement with another noncommissioned officer (NCO), while they were both in charge of details.  The applicant states the other NCO tried to take one of the members of his detail and after an argument they had a fight.  He goes on to indicate that he was 
court-martialed as a result of the incident, but his rights and privileges were restored by Congress, which the Army never acted on.  

4.  There are only partial records available on the applicant.  In 1973, there was a fire at the National Personnel Records Center in St. Louis, Missouri, and in all probability, most of the applicant’s official records was lost or destroyed in the fire at that agency.  The record does contain a DD Form 214 (Report of Separation from the Armed Forces of the United States).

5.  There is no separation packet on file, which outlines the specific facts and circumstances surrounding the events which led to the applicant’s discharge. There is however, a DD Form 214 on file, signed by the applicant.  This document shows that on 6 January 1954 the applicant was separated with an GD, under the provisions of Change 1 to Special Regulation 615-365-5 and Army Regulation 615-365, by reason of convenience of the government based on being an overseas returnee. At the time of this discharge the applicant had completed 2 years, 11 months, and 8 days of active military service.  This document also shows that the applicant earned the Army of Occupation Medal for Germany and the National Defense Service Medal.  It also shows that the he had no time lost during the period of the enlistment.  

6.  Change 1 to Special Regulation 615-360-5, in effect at the time, provided for the discharge of enlisted personnel of the Regular Army if they had 3 months or less to serve upon their return from overseas.  This discharge would be accomplished by reason of convenience of the government.  At the time of the applicant’s discharge, Army policy and procedure for the separation of enlisted soldiers for the convenience of the government was provided in Army Regulation 615-365.  

7.  Department of Defense (DOD) Directive 1332.28, dated 11 August 1982, subject: Discharge Review Board Procedures and Standards, establishes uniform policies, procedures, and standards for the review of discharges or dismissals under Title 10, United States Code, section 1553, and applies to the Office of the Secretary of Defense and the Military Departments.  Section 4 of that Directive sets forth the objectives for discharge review.  It provides that a discharge shall be deemed proper unless it is determined that a change in policy by the military service of which the applicant was a member, made expressly retroactive to the type of discharge under consideration, requires a change in the discharge.  Furthermore, a discharge shall be deemed to be equitable unless there is substantial doubt the applicant would have received the same discharge if relevant current policies and procedures had been available to the applicant at the time the discharge was considered, even though the discharge was determined to have been otherwise equitable and proper at the time of issuance.

8.  Army Regulation 635-200 provides current policy and procedure on the separation of enlisted personnel.  Chapter 5 provides the current Army policy and procedure for separating enlisted personnel for the convenience of the government.  Paragraph 5-1 states, in pertinent part, that soldiers separated for the convenience of the government, unless otherwise stipulated, will be given an honorable characterization of service.  

9.  Chapter 4 of this regulation prescribes the current Army policy for separating soldiers on the completion of their service obligations.  It states, in pertinent part, that active duty soldiers will normally be separated on the date he or she completes the period for which they enlisted.  It also allows for soldiers returning from overseas to be separated if they are within 30 days of completing their enlistment.  It also states that individuals separated under the provisions of this chapter will be given an honorable characterization of service.  

CONCLUSIONS:

1.  There are no facts and circumstances pertaining to the events which led to the applicant’s discharge in the record.  However, there is a properly constituted DD Form 214 on file, signed by the applicant which documents the characterization and the reason for the discharge.  Therefore, the Board presumed regularity in the discharge process.

2.  There is no evidence of record or independent evidence in regard to the 
court-martial or restoration of rights by the Congress alleged by the applicant.  Therefore, these issues were not factors used by the Board in their deliberations, nor were they used as a basis for relief.  

3.  The Board did conclude, although the discharge issued the applicant was proper and equitable at the time it was issued, his record of service does not meet the criteria for a GD by current Army regulations.  

4.  Had the Army Discharge Review Board reviewed the applicant’s discharge under DOD Directive 1332.28, it is reasonable to presume that his discharge would have been upgraded based on the application of the current regulation for discharges based on convenience of the government or for overseas returnees.  Although DOD Directive 1332.28 provides policy for review of discharges for Discharge Review Boards, it appears appropriate that this Board adopt and apply the standards set forth in this Directive for this particular case.

5.  Accordingly, in view of the current standards for discharges issued for the convenience of the government and for overseas returnees, a GD is unduly harsh and unjust.  Therefore, in view of current Army standards, the Board concluded an upgrade of the applicant’s discharge to honorable would be appropriate at this time. 

6.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was separated with an Honorable Discharge Certificate, dated 6 January 1954, in lieu of the GD of the same date he now holds.

BOARD VOTE:  

__inw___  ___ls ___  ___js____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_____John N. Slone______
		        CHAIRPERSON

INDEX

CASE ID	AR1999026613	
SUFFIX		
RECON		
DATE BOARDED	2000/01/12	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	1954/01/06	
DISCHARGE AUTHORITY	AR 615-365	
DISCHARGE REASON	Convenience of the Government	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  189	110.000	
2.		
3.		
4.		
5.		
6.