MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:          13 November 2003    
	DOCKET NUMBER:  AR2003089853

	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:

	Mr. Arthur A. Omartian		Chairperson	
	Ms. Eloise C. Prendergast		Member	
	Mr. Ronald E. Blakely		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, reconsideration of his earlier appeal to correct his military records by upgrading his general discharge under the provisions of the Special Discharge Review Program (SDRP) to honorable.

APPLICANT STATES:  In effect, that his discharge should have already been changed.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in the Memorandum of Consideration prepared to reflect the consideration of Docket Number AC94-11555 by the Army Board for Correction of Military Records (ABCMR) on 21 December 1994.  The ABCMR denied the application based on failure to timely file.

The applicant provided a copy of a DD Form 215 (Correction to DD Form 214), prepared on 18 September 1978, which amended item 27 on his DD Form 214 to show, "DISCH [DISCHARGE] REVIEWED UP [UNDER PROVISION] PL [PUBLIC LAW] 95-126 AND A DETERMINATION MADE THAT CHARACTERIZATION OF SERVICE WAS WARRANTED UP DOD [DEPARTMENT OF DEFENSE] SDRP 4 APR 77."

The applicant also provided a letter, dated 8 April 2003, from the Department of Veterans Affairs (DVA).  This letter indicates that the applicant was notified on 
22 March 1979 that his undesirable discharge from military service on 14 April 1969 was issued under conditions which constitute a bar to the payment of DVA benefits.  The DVA acknowledged that the applicant's undesirable discharge was upgraded to general under the DOD SDRP on 14 June 1977.  The DVA also acknowledged that on 21 August 1978 the Army Discharge Review Board (ADRB), as required by Public Law 95-126, did not affirm the applicant's upgraded discharge under the DOD SDRP.  Therefore, the applicant's discharge remains a bar to the payment of DVA benefits.   

The applicant’s submissions are new evidence which will be considered by the Board.

The Department of the Army SDRP was based on a memorandum from Secretary of Defense Brown and is often referred to as the "Carter Program."  It mandated the upgrade of individual cases in which the applicant met one of several specified criteria and when the separation was not based on a specified compelling reason to the contrary.  The ADRB had no discretion in such cases other than to decide whether recharacterization to fully honorable as opposed to a general discharge was warranted in a particular case.  An individual who had received a punitive discharge was not eligible for consideration under the SDRP.  

Absentees who returned to military control under the program were eligible for consideration after they were processed for separation.  Individuals could have their discharges upgraded if they met any one of the following criteria:  wounded in action; received a military decoration other than a service medal; successfully completed an assignment in Southeast Asia; completed alternate service; received an honorable discharge from a previous tour of military service; or completed alternate service or excused therefrom in accordance with Presidential Proclamation 4313 of 16 September 1974.  Compelling reasons to the contrary to deny discharge upgrade were desertion/absent without leave in or from the combat are; discharge based on a violent act of misconduct; discharge based on cowardice or misbehavior before the enemy; or discharge based on an act or misconduct that would be subject to criminal prosecution under civil law.  

Public law 95-126, enacted on 8 October 1977, provided generally, that no DVA 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 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

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 applicant’s administrative separation in 1969 was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The applicant’s undesirable discharge was upgraded to general under the SDRP on 14 June 1977.  

4.  The Board reviewed the applicant’s record of service which included one special court-martial, two nonjudicial punishments and 309 days of lost time and determined that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to an honorable discharge.

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

AAO____  ECP____  REB_____  DENY APPLICATION

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

INDEX

CASE ID	AR2003089853	
SUFFIX		
RECON	Yes	
DATE BOARDED	20031113	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19690414 - UD upgraded to GD by Special Discharge Review Board on 19770614	
DISCHARGE AUTHORITY	 	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.0200	
2.		
3.		
4.		
5.		
6.