MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           8 August 2002                  
	DOCKET NUMBER:   AR2002070798

	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	
	Mr. G. E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond J. Wagner		Chairperson	
	Mr. Lester Echols		Member	
	Ms. Margaret V. Thompson		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 be upgraded to general or honorable.

APPLICANT STATES:  In effect, he was told that his discharge would automatically be upgraded.  He also states that he should never have been inducted because he has only one kidney.  He reports that he reported it when he took his induction medical examination but was told that it was okay.   He submits a 17 April 2001 medical report showing a congenital absence of the left kidney.

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

The applicant entered active duty on 26 April 1971.  He completed basic combat training and advanced individual training and approximately 3 months of service without a discreditable incident of record. 

All three pertinent forms completed at the time of his entry onto active duty, DD Form 47 (Report of Induction), Standard Form 88 (Report of Medical Examination), and Standard Form 89 (Report of Medical History) show that no defects or complaints related to his kidneys were reported or found.

The applicant's record shows that he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, on six separate occasions as follows:	

a.  7 September 1971, for being absent without leave (AWOL) from 16 August 1971 through 6 September 1971;

b.  10 December 1971, for operating a privately owned vehicle on base without a valid state license;

c.  19 January 1972, for being absent from his appointed place of duty; 

d.  10 February 1972, for being AWOL 3 through 6 February 1972;

e.  5 June 1972, for being absent from appointed place of duty; and

f.  5 July 1972, for being AWOL 3 and 4 July 1972.

The applicant's medical records show no complaints of problems that might relate to or notations for concerns about kidneys.  There is no indication that the applicant was afforded any tests to show he had a congenital absence of or nonfunctioning kidney.

The applicant's discharge medical examination, conducted 11 July 1972, showed no defects or diseases related to his kidneys reported or found. 

On 14 August 1972, the applicant's company commander initiated discharge action under Army Regulation 635-212, paragraph 6a(1) & (4) for unfitness due to frequent acts of a discreditable nature.  In addition to the NJPs cited above, the company commander also documented 14 negative counseling statements for diverse reasons including, but not limited to, AWOL, illegal drug use, living off post without permission, shirking his duties, and discreditable involvement with civil authorities.  He recommended that the applicant be discharged with an Undesirable Discharge Certificate.

After consulting with a military counsel, the applicant waived his right to have his case reviewed by a board of officers, to appear in person or be represented by counsel before a board of officers, or to submit a statement on his own behalf.  He acknowledged that he was advised that he could expect to face substantial prejudice in the event that he were discharged with a general discharge and that he would be deprived of many or all Army and Department of Veterans Affairs benefits if he received an under other than honorable conditions discharge.

The discharge authority approved the applicant's separation for unfitness and directed that he receive an Undesirable Discharge Certificate.

The applicant was discharged on 24 August 1972.  He was shown to have 1 year, 3 months and 1 day of creditable service with 28 days lost due to AWOL. 

Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel.  Paragraph 6 of the regulation provided, in pertinent part, that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities and/or an established pattern of shirking.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate. 

Department of Defense Instruction 1332.28 (Standards for Discharge Review) specifically states that no factors should be established that require automatic change or denial of a change to any discharge.

The Army does not, nor has it ever had, a policy to automatically upgrade discharges.  When an applicant submits a request to change a discharge, each case is decided on its own merits.  Change may be warranted if the Board determines that the characterization of service or the reason for discharge was in error and/or unjust.  

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.  There is no evidence to support the applicant's contention that he notified the military that he had only one functioning kidney.  

2.  The Army does not, nor has it ever had, a policy to automatically upgrade discharges.  When an applicant submits a request to change a discharge, each case is decided on its own merits.  Change may be warranted if the Board determines that the characterization of service or the reason for discharge was in error and/or unjust.  

3.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The applicant demonstrated the capacity to serve by completion of initial training and approximately three months of service without a discreditable incident of record.  Therefore the Board finds that the character of the discharge is commensurate with the applicant's overall record of military service.

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

_RJW ___  __LE ___  __MVT __  DENY APPLICATION

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

INDEX

CASE ID	AR2002070798	
SUFFIX		
RECON		
DATE BOARDED	20020808	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.9223	
2.	144.9410	
3.	144.9905  	
4.		
5.		
6.