MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:  22 March 2000
	DOCKET NUMBER:   AR2000037629

	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. Theodore G. Heartley		Analyst	

  The following members, a quorum, were present:

	Mr. James M. Alward		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Ted S. Kanamine		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 military records be corrected by upgrading his discharge under other than honorable conditions to an honorable discharge under hardship conditions.

APPLICANT STATES:  In effect, that even though his undesirable discharge was upgraded to a general discharge by presidential decree, the VA will not honor his discharge under honorable conditions so that he can receive VA benefits.  He further states that at the time of his periods of AWOL, he was enduring extreme circumstances yet he is very remorseful.  He adds that he now wishes to join the National Guard.

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

He enlisted in the Regular Army on 20 June 1966, for a period of 3 years.  After successfully completing his initial training, he was assigned to duties as switchboard operator in military occupation specialty (MOS) 36A at Fort Bragg, North Carolina on 19 November 1966.  He served in Vietnam from 28 December 1966 to 27 December 1967. 

His records indicated that during the period from October 1967 to November 1970, he accumulated 680 days of lost time including 533 days of AWOL and 147 days of confinement.  Non-judicial punishment by Article 15, UCMJ, was imposed against him 3 times for failing to be at his appointed place of duty on 2 August 1966, 19 June 1967, and 11 June 1968.  His punishments included two forfeitures totaling $24.00, reduction to private (PVT E-2), 14 days of extra duty, and 14 days of restriction.  He was also convicted by special court-martial for 86 days of AWOL on 19 February 1968; summary court-martial for 22 days of AWOL on 1 November 1968; and by a second special court-martial on 7 February 1970 for 208 days of AWOL.  

The applicant’s unit commander recommended approval of his undated request for discharge for the good of the service in lieu of trial by court-martial for 
217 days of AWOL from 22 April 1970 to 24 November 1970 under the provisions of Army Regulation 635-200, Chapter 10.  In his request for discharge, he stated that he was not subjected to any coercion; that he was afforded the opportunity to consult with a military lawyer; and that he was made aware of the implication of such a discharge including deprivation of many or all Army benefits, ineligibility of VA benefits, and deprivation of benefits as a veteran under both federal and state laws.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life as a result of receiving an undesirable discharge.

A report of medical history dated 10 December 1970, indicated that his stated health was good.  His report of medical examination was not in his available records.

On 11 January 1971, the separation authority, a major general, approved his request for separation and directed the issuance of an Undesirable Discharge Certificate.

His DD Form 214, separation document, indicated that he was separated on 20 January 1971 under the provisions of Army Regulation 635-200, Chapter 
10 for the good of the service in lieu of trial by court-martial.  He had completed 
2 year and 2 days of creditable service with 943 days of lost time.  A DD Form 215 dated 17 February 1982, indicated that the lost time was corrected to reflect a total of 680 days.

AR 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.

On 4 April 1977 the Department of Defense (DOD) directed the Services to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973.  This program, known as the DOD Discharge Review Program or SDRP, required in the absence of compelling reasons to the contrary, that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge.  Consideration of other factors, including possible personal problems which may have contributed to the acts which led to the discharge, and a record of good citizenship since the time of discharge, would also be considered upon application by the individual.

On 9 June 1977, the Army Discharge Review Board (ADRB) upgraded his undesirable discharge to a general discharge under honorable conditions in accordance with the DOD SDRP.

In October 1977, Public Law 95-126 was enacted.  This legislation denied Veterans Administration (VA) benefits to any former service member who had been AWOL for more than 180 consecutive days, or who had been classified as a deserter or a conscientious objector.  The DOD was required to establish historically consistent, uniform standards for discharge reviews.  Reconsideration using these uniform standards was required for all discharges previously upgraded under the SDRP and certain other programs were required.  Individuals whose SDRP upgrades were not affirmed upon review under these historically consistent uniform standards were not entitled to VA benefits, unless they had been entitled to such benefits before their SDRP review.

On 11 July 1978, the ADRB re-examined his general discharge upgrade granted under the SDRP and determined that the quality of his post-Vietnam service including 3 courts-martial and 1 Article 15 did not warrant affirmation of his general discharge.  Accordingly, the ADRB denied affirmation of his general discharge by unanimous vote.

On 10 May 1982, this Board denied a January 1981 request for removal of his lost time from his record on the basis of insufficient evidence to determine the existence of error or injustice.  

A FBI background check revealed that during his post-service life, he was charged with larceny however, a record of punishment was unavailable.

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 concludes that even though the applicant’s record shows numerous AWOL offenses, the ADRB demonstrated considerable compassion by upgrading his undesirable discharge to a general discharge despite the absence of a subsequent affirmation that would have allowed his entitlement to VA benefits.  

2.  The Board further concludes that his overall record of military service coupled with his record of post-service conduct does not merit consideration for upgrading his general 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

__JA___  __AO___  ___TK__  DENY APPLICATION

						Karl F. Schneider
				     Director, Army Review Boards Agency

INDEX

CASE ID	AR2000037629	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000322	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19710120	
DISCHARGE AUTHORITY	AR635-200	
DISCHARGE REASON	IN LIEU OF COURT-MARTIAL	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110	
2.		
3.		
4.		
5.		
6.