MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      .

	BOARD DATE:           22 May 2003                  
	DOCKET NUMBER:   AR2003085699

	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. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.. 		Chairperson	
	Mr. Stanley Kelley . 		Member	
	Ms. Gail J. Wire		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 (UD) be upgraded to an honorable discharge (HD).  

APPLICANT STATES:  In effect, that he desires an upgrade of his discharge for the purpose of obtaining benefits from the Department of Veterans Affairs (VA).  He also claims that he was told at the time of his discharge that it would be upgraded to an HD automatically after six months; however, this never occurred. 

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

On 1 October 1970, he enlisted in the Regular Army for 3 years.  The record also confirms that the highest rank he attained while serving on active duty was private first class (PFC), and that during his active duty tenure the only award he earned was the National Defense Service Medal.  His record documents no acts of valor, significant achievement, or service warranting special recognition. 

The applicant’s disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two separate occasions.  The first on 21 October 1971, which resulted in his reduction to private/E-2 (PV2); and the second on 
29 February 1972, which resulted in his reduction to private/E-1 (PV1).  

On 22 March 1972, four court-martial charges were preferred against the applicant for his violation of the following articles of the UCMJ by committing the offenses indicated:  Article 89, for being disrespectful to a superior commissioned officer; Article 90, for offering violence against a superior commissioned officer in the execution of his duties; Article 121, for stealing five cartons of cigarettes from the Post Exchange; and Article 128, for assaulting a civilian employee of the Post Exchange.  

On 3 April 1972, the applicant consulted legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an UD discharge, and of the procedures and rights that were available to him.  Subsequent to this counseling, the applicant voluntarily requested discharge, for the good of the service, in lieu of trial by court-martial.  In his request for discharge, the applicant acknowledged his understanding that he would be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  

The appropriate authority approved the applicant’s request for discharge in lieu of trial by court-martial, and directed that he receive an UD.  On 20 April 1972, the applicant was discharged accordingly. 
The DD Form 214 issued to the applicant on the date of his separation confirms that he was discharged under the provisions of chapter 10, Army Regulation 
635-200, in lieu of trial by court-martial.  This document also confirms that at the time of his discharge the applicant had completed 1 year, 6 months, and 20 days of creditable active military service.

On 12 September 1974, the Army Discharge Review Board (ADRB) found the applicant’s discharge was both proper and equitable, and it denied the applicant’s request for an upgrade.

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. However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable 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.  The Board notes the applicant’s contention that he was told that his discharge would be automatically upgraded within six months, and it carefully considered his request to upgrade his discharge in order to allow him to obtain VA benefits.  However, it finds neither of these factors are sufficiently mitigating to warrant the requested relief. 

2.  The 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 submits an application to either the ADRB or this Board requesting a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.  The record confirms that the ADRB considered and denied the applicant’s request for an upgrade of his discharge in 1974, after it concluded his discharge was both proper and equitable.  

3.  The evidence of record shows the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  The Board notes that, after consulting with defense counsel, and being advised of the consequences of requesting an administrative discharge in lieu of court-martial, which included the loss of VA benefits, the applicant voluntarily requested separation in lieu of trial by court-martial.  

4.  The Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process, and that the character of his discharge accurately reflects his overall record of service.  Therefore, the Board concludes that the requested relief is not warranted in this case.

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

GW___  __SK___  __RO 		DENY APPLICATION

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

INDEX

CASE ID	AR2003085699	
SUFFIX		
RECON		
DATE BOARDED	2003/05/22	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1972/04/26	
DISCHARGE AUTHORITY	AR 635-200 C10	
DISCHARGE REASON	In lieu of court-martial	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000	
2.		
3.		
4.		
5.		
6.