MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           13 January 2000                  
	DOCKET NUMBER:   AR1999029659

	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.

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Ernest M. Willcher		Chairperson	
	Mr. Ernest W. Lutz, Jr.		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 under other than honorable conditions (UOTHC) be upgraded to honorable.

APPLICANT STATES:  That other servicemen who went absent without leave (AWOL) were pardoned by President Carter.  He does not see why his situation is any different.  He has not been arrested in the past few years.  He provides his DD Form 214 as supporting evidence.

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

He enlisted in the Regular Army on 12 December 1966.

On 9 February 1967, the applicant accepted non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being AWOL from 5 to      8 February 1967.  On 3 March 1967, he accepted NJP under Article 15, UCMJ for being AWOL from 3 – 5 March 1967.

On 24 March 1967, the applicant accepted NJP under Article 15, UCMJ for being AWOL from 24 – 25 March 1967 and for stealing a pair of jump boots.

On 1 May 1967, the applicant was convicted by a summary court-martial of being AWOL for the periods 8 to 11 April 1967 and 14 to 18 April 1967.  He was sentenced to confinement at hard labor for 1 month.

On 14 December 1967, the applicant was convicted by a special court-martial of being AWOL for the periods 10 June to 9 September 1967 and 8 October to      11 November 1967.  He was sentenced to confinement at hard labor for 6 months and to forfeit $64.00 for 6 months.

On 22 November 1967, the applicant completed a psychiatric evaluation but the certificate of neuropsychiatric examination had been withdrawn from the separation packet.

On 4 January 1968, the company commander initiated separation action under Army Regulation 635-212 for unfitness.  The commander cited the applicant’s constant disciplinary problems to include two civilian convictions for receiving stolen property and attempted breaking and entering which took place during the periods of his AWOL.  The applicant was advised of his rights by counsel.  He 
waived consideration of his case by a board of officers; waived personal appearance before such a board; elected not to make a statement on his behalf; and waived representation by counsel.

On 9 January 1968, the applicant completed a separation physical examination and was found qualified for separation.

The appropriate authority approved the recommendation and directed issuance of an Undesirable - UOTHC Discharge Certificate.

On 1 February 1968, the applicant was discharged, with a discharge under other than honorable conditions, in pay grade E-1, under the provisions of Army Regulation 635-212 for unfitness.  He had completed 8 month and 3 days of creditable active service and had 171 days of lost time.

Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  The regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana, an established pattern for shirking, an established pattern showing dishonorable failure to pay just debts or failure to contribute adequate support to dependents, were subject to separation for unfitness.  Such action would be taken when it was clearly established that despite attempts to rehabilitate or develop him as a satisfactory soldier further effort was unlikely to succeed.

The Department of Defense Special Discharge Review Program, often referred to as the “Carter Program,” specified that former service members who received undesirable discharges during the period 4 August 1964 through 28 March 1973 were eligible for review.  Individuals who received undesirable discharges would have their discharges upgraded if they met any one of the following criteria:  wounded in combat in Vietnam; received a military decoration other than a service medal; successfully complete an assignment in Southeast Asia or in the Western Pacific in support of operations in Southeast Asia; or completed alternate service or was excused from completion of alternate service under the clemency program instituted 16 September 1974, or received an honorable discharge from a previous tour of military service.  Individuals could also qualify for upgrading whenever the Board believes such upgrading is appropriate based on all the circumstances of a particular case and on the quality of civilian record made since 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 the aforementioned requirement.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  

3.  The applicant did not meet the criteria for an automatic upgrade of his discharge under the provisions of the “Carter Program.”

4.  Considering the applicant’s record of disciplinary actions to include two civil convictions, the characterization of his discharge as under other than honorable conditions was and still is appropriate.

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

__emw___  __ewl___  __mvt___  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999029659	
SUFFIX		
RECON		
DATE BOARDED	20000113	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19680201	
DISCHARGE AUTHORITY	AR 635-212 	
DISCHARGE REASON	A51.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.