MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:                             12 October 2000 
	DOCKET NUMBER:                    AR2000045301

	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	
	Ms. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Mr. John D. Miller		Chairperson	
	Mr. John E. Denning		Member	
	Ms. Carol J. Suiter		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, as upgraded to general (under honorable conditions), be affirmed under Public Law 95-126.

APPLICANT STATES:  That he was unaware that his discharge required a second affirmation until he received a letter, dated 8 November 1978, from the Office of the Adjutant General (TAGO), Department of the Army.  He also states that his records were corrected on 24 October 1978 and the decision to upgrade his discharge should be affirmed under the cited Public Law.  In support of his application, he submits a copy of his DD Form 214 (Report of Separation from Active Duty), a copy of DD Form 215 (Correction to DD Form 214), a copy of DD Form 2067 (Case Report and Directive Review Board Statement of Findings, Consclusions & Reasons) issued by the Army Discharge Review Board (ADRB) on 17 May 1977, and a copy of the TAGO's letter, dated 8 November 1978.

EVIDENCE OF RECORD:  The applicant's military records show he entered active duty on 25 November 1969 and continued to served until he was honorably discharged on 11 August 1970 in order to reenlist.  He reenlisted on 12 August 1970.  He served in Vietnam from 8 November 1970 to 18 November 1971.

Between June 1971 and October 1971, he received three nonjudicial punishments (NJP) and one summary court-martial for instances of failure to go to his appointed place of duty, for sleeping on his post as a sentinel and for being AWOL from 1 February 1972 to 12 February 1972 (12 days).  His punishments consisted of confinement, reduction, forfeitures of pay, extra duties and reduction to pay grade E-1.

On 24 February 1972, the applicant’s commander submitted a recommendation to separate the applicant from the service under the provisions of Army Regulation 635-212, for unfitness.  He cited as the basis for his recommendation the applicant’s frequent incidents of a discreditable nature with military authorities.  

After consulting with counsel, the applicant waived consideration of his case by and appearance before a board of officers.  He also waived further representation by military counsel and elected not to submit a statement in his own behalf.  He acknowledged that he might encounter substantial prejudice in civilian life and might be ineligible for many or all benefits administered by the Veterans Administration (VA) if a discharge under other than honorable conditions were issued.

On 25 April 1972, the separation authority approved the recommendation for discharge and directed that he be furnished an Undesirable Discharge Certificate.  The applicant was discharged on 2 May 1972.  He had a total of
1 year, 8 months and 4 days of creditable service and 12 days of lost time due to AWOL.

The applicant applied to the ADRB for an upgrade of his discharge under the Department of Defense (DOD) Special Discharge Review Program (SDRP) on 3 May 1977.  The ADRB upgraded his discharge to general (under honorable conditions) under the provisions of the SDRP on 17 May 1977.  

The letter from the TAGO, dated 8 November 1978, informed the applicant that the previous upgrading of his discharge was re-review by the ADRB as required by Public Law 95-126.  Upon review, the ADRB determined that the applicant’s discharge did not qualify for upgrading under the new uniform standards for discharge reviews.  Accordingly, the applicant’s upgraded discharge under the DOD SDRP was not affirmed.

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 to include various aspects of service in the RVN.  Reasons for granting an upgrade under secondary criteria include age, aptitude, education level, alcohol/drug problem, record of citizenship, etc.

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 Ford memorandum of 19 January 1977, or the DOD 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 one of the special discharge review programs to the uniform standards and to affirm only those cases where the case met those standards.

Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

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 applicant’s administrative separation in April 1972 was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.
2.  The type of discharge directed and reasons for that separation at that time were appropriate considering all of the available facts of the case.

3.  The applicant’s discharge was upgraded to general (under honorable conditions) under the SDRP on 17 May 1977.

4.  However, this upgrade was not affirmed under the provisions of discharge review standards established by the Department of the Army in accordance with Public Law 95-126.  Therefore, for the purposes of VA benefits his discharge remains an undesirable discharge.  It must be noted that the Department of Veteran Affairs must make a final determination as to veteran entitlements. 

5.  The applicant has provided no new evidence or rationale for a change in that decision.  The applicant's repeated acts of misconduct in a combat zone reduced the quality of his service below that warranting either an honorable or a general (under honorable conditions) discharge.  

6.  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.

7.  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:

JDM_____  JED____  CJS_____  GRANT

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

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

INDEX

CASE ID	AR2000045301	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001012	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19720502	
DISCHARGE AUTHORITY	AR 635-212	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189		
2.		
3.		
4.		
5.		
6.