MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            5 April 2001                            
	DOCKET NUMBER:   AR2000050412

	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	
	Mrs. Judy Blanchard-Miller		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Ms. Celia L. Adolphi		Member	
	Mr. Harry B. Oberg		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:  That his discharge under honorable conditions be upgraded to an honorable discharge. 

APPLICANT STATES:  In effect, that he was informed that his discharge would change into an honorable discharge.  

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

On 21 July 1972, the applicant enlisted in the Regular Army for a period of 
3 years. 

On 22 September 1972, the applicant was convicted by a special court-martial (SPCM) of two specifications of unlawfully striking with his fist two acting corporals.  He was sentenced to a forfeiture of $150.00 pay, confinement at hard labor for 10 days and 30 days of hard labor without confinement.

On 18 December 1972, the applicant was convicted by a SPCM of two specifications of assault on a noncommissioned officer (E-6) and a private (E-1) and of being absent without leave for 24 hours.  He was sentenced to a forfeiture of $190.00 pay per month for 3 months and confinement at hard labor for 
3 months. 

The applicant’s confinement record at Fort Dix, New Jersey Stockade and at the US Army Retraining Brigade, Fort Riley Kansas showed several incidents of the applicant being disrespectful, disobeying lawful orders, irresponsible behavior and poor performance. 

On 10 January 1973, a psychiatric evaluation diagnosed the applicant as having an inadequate personality, manifested by ineffectual responses to emotional, intellectual and social demands.  The applicant was found mentally responsible, able to distinguish right from wrong and to adhere to the right.  He was considered mentally competent to understand and participate in board proceedings. 

On 18 January 1973, the applicant was found physically fit for retention. 

On the same day, the commander notified the applicant that he was being recommended for discharge under Army Regulation 635-200, chapter 13, for unsuitability, character/behavior disorder with a general discharge.  The applicant was advised by legal counsel of the basis for the contemplated separation action and the rights available to him, he waived consideration, personal appearance, and representation before a board of officers.  

On 22 January 1973, the appropriate authority approved the recommendation, waived rehabilitative requirements and directed the issuance of a General Discharge Certificate.  On 26 January 1973, the applicant was discharged in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 13 for unsuitability, character/ behavior disorders with a discharge under honorable conditions.  He had completed 2 months and 8 days of creditable active service and 118 days of lost time. 

Army Regulation 635-200, chapter 13, in effect at the time sets forth the basic authority for the separation of enlisted personnel from active duty for unsuitability. That regulation provided, in pertinent part, that commanders would separate a member under this chapter when, in the commander's judgment, it was clearly established that the member would not develop sufficiently to become a satisfactory soldier.  When separated for unsuitability an honorable or a general discharge was normally considered appropriate.

On 11 October 1984, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

The U.S. 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 requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reasons for discharge or both were improper or inequitable.  The Defense Discharge Review Standards specifically states that no factors should be established which would require automatic change or denial of a change in discharge  

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.  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.

2.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant’s overall record of military service.

3.  The evidence of record shows that the applicant exhibited unacceptable pattern of misconduct.  Therefore, the type of discharge directed and the reasons were appropriate considering all the facts of the case.

4.  The Board has noted the contention of the applicant in regard to an automatic upgrade of his discharge.  However, they are not supported either by the evidence submitted with the application or the evidence of record.  An upgrade is not automatic and the merits of his case do not warrant an upgrade. 

5.  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

__jh____  __cla___  __hbo___  DENY APPLICATION

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

INDEX

CASE ID	AR2000050412	
SUFFIX		
RECON		
DATE BOARDED	20010405	
TYPE OF DISCHARGE	(GD)	
DATE OF DISCHARGE	19730126	
DISCHARGE AUTHORITY	AR635-200,chapter13 .  .  .  .  .  	
DISCHARGE REASON	A40.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.4000	
2.		
3.		
4.		
5.		
6.