MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           4 December 2001    
	DOCKET NUMBER:   AR2001061796

	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. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Ms. Joann Langston		Chairperson	
	Ms. Margaret K. Patterson		Member	
	Mr. Eric N. Andersen		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 discharge under other than honorable conditions be upgraded to general. 

APPLICANT STATES:  That his discharge was based on one isolated incident in 11 months of service with no other adverse action.  He contends that his post service civilian life has been impeccable and highly recognized.  In support of his application, he submits a personal statement, dated 14 August 2001; four character reference letters; a Small Business Association of Michigan Certificate, dated 1 April 1989; and a Criminal Background Records Check, dated 24 August 2001.

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

The applicant was inducted on 16 March 1970.  He successfully completed basic and advanced individual training and was transferred to Vietnam for duty as an infantryman.  

On 10 December 1970, charges were preferred against the applicant for disobeying a lawful command from a superior commissioned officer to board a helicopter to join his company in the field in Vietnam.  Trial by special court-martial was recommended.

On 1 February 1971, after consulting with counsel, the applicant submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He indicated in his request that he understood he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate; that he shall be deprived of many or all Army benefits; that he may be ineligible for many or all benefits administered by the Veterans Administration; and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  The applicant elected to submit a statement in his own behalf; however, this statement was not contained in the available records. 

The intermediate commanders recommended that the applicant’s request for discharge be approved and that he be furnished an undesirable discharge.   
  
On 8 February 1971, the separation authority approved the applicant’s request for discharge and directed that he be issued an undesirable discharge.

Accordingly, the applicant was discharged under other than honorable conditions on 15 February 1971 under the provisions of Army Regulation 635-200, chapter 10.  He had served 11 months of total active service.

On 8 July 1977, the Special Discharge Review Program determined that the applicant did not meet the criteria of the program and denied relief.

On 5 September 1978, the Army Discharge Review Board denied the applicant’s request for a discharge upgrade to honorable.

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 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. 

The Special Discharge Review Program, 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.

Army Regulation 635-200, paragraph 3-7, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the soldier’s separation specifically allows such characterization.

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 voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  

2.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

3.  The Board considered the applicant’s contention that his discharge was based on one isolated incident in 11 months of service with no other adverse action.  However, the Board determined that the seriousness of the offense (refusing a direct order to go to the field during the Vietnam Conflict) for which trial by special court-martial was recommended, is too serious to warrant relief in the form of a general discharge.

4.  The Board considered the applicant’s contentions regarding his post service achievements and conduct.  The Board also considered the character reference letters provided in support of his claim.  However, good post service conduct alone is not a basis for upgrading his discharge.

5.  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.

6.  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

JL______  MKP____  ENA____  DENY APPLICATION

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

INDEX

CASE ID	AR2001061796	
SUFFIX		
RECON		
DATE BOARDED	20011204	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	19710215	
DISCHARGE AUTHORITY	AR 635-200, Chapter 10	
DISCHARGE REASON	For the good of the service	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.0200	
2.		
3.		
4.		
5.		
6.