MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:                   22 June 2000                  
	DOCKET NUMBER:          AR1999030778

	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. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Roger Able		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 bad conduct discharge be upgraded to an honorable discharge.

APPLICANT STATES:  In effect, that his discharge was unjust because he had a good record and honorable service for 2 years and 4 months and that he felt that it was unjust due to the circumstances involved.  He also states while on active duty he was promoted to the rank of Private First Class/PFC and was thinking of making the US Army his career for retirement.  He further states that he felt that he deserves an honorable discharge in reference to President Carter’s Title 3, Presidential Proclamation 4483 (4413 sic), which granted pardon for violation of the Selective Service Act.  He goes on to state that he regrets receiving a bad conduct discharge, that he is proud of his country and the US Army and that the bad conduct discharge has affected his life since he received it.  He concludes by stating that he is ineligible for membership in any veterans’ service organizations due to the character of his discharge and is ineligible for medical care at the Veterans Administration (VA) Medical Center.

COUNSEL CONTENDS:  That the applicant’s submission, in conjunction with the official army records, amply advance his contentions and substantially reflect the probative facts needed for equitable review.  Counsel also states that he rests on the evidence of record and is assured that the Board’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion.

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

He entered active duty on 30 June 1960 and continued to serve until he was honorably discharged on 1 September 1960 in order to reenlist.  He reenlisted on 2 September 1960.

He was convicted by a summary court-martial on 13 April 1962 of being AWOL from 9 April 1962 to 10 April 1962 (2 days).  His sentence consisted of a forfeiture of pay, confinement for 30 days and reduction to the pay grade of E-1.  His sentence was adjudged and approved on 13 April 1962.

He was convicted by a general court-martial on 18 October 1963 of being AWOL from 28 September 1962 to 12 August 1963 (319 days).  His sentence consisted of a forfeiture of pay, confinement at hard labor for 8 months and a Bad Conduct Discharge.  His sentence was adjudged on 18 October 1963 and approved on 8 November 1963.

On 22 November 1963, the Court of Military Review affirmed the findings and sentence as provided by the convening authority.

On 25 January 1964, the applicant was discharged from the Army pursuant to the sentence of a general court-martial and was issued a Bad Conduct Discharge Certificate.

The applicant’s case is ineligible for review by the Army Discharge Review Board (ADRB) due to his conviction by a general court-martial.

Army Regulation 635-204, in effect, at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 1(b) of the regulation provided, in pertinent part, that an enlisted person would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.
The appellate review must be completed and the affirmed sentences ordered duty executed.

The Special Discharge Review Program (SDRP), 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.

Public Law 95-126 enacted on 8 October 1977, provided generally, that no VA benefits could be granted based on any discharge upgraded under the Ford memorandum of 19 January 1977, or the DOD Special Discharge Review Program.  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.

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.  Trial by court-martial was warranted by the gravity of the offense charged.
Conviction and discharge were effected in accordance with applicable law and regulation.

2.  The Board noted the applicant’s contentions that his discharge was unjust because he had a good record and that it was unjust due to the circumstances involved.  However, the Board also stated that the applicant has over 440 days lost.  The applicant has provided no evidence to show his discharge was unjust or sufficient to mitigate the character of his discharge.

3.  The Board noted the applicant’s contention that he deserves an honorable discharge based on President Carter’s Title 3, Presidential Proclamation
4483, which granted pardon for violation of the Selective Service Act.  However, the applicant’s discharge from the Army was not eligible for review under this program because it was the result of a general court-martial, not an administrative discharge.

4.  The Board noted the applicant’s contentions that he is ineligible for membership in any Veterans Service Organization and is ineligible for medical care at the VA Medical Center.  However, these issues are not a basis for granting clemency 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 the aforementioned 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:

LLS_____  AAO____   RA_____  GRANT

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

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

INDEX

CASE ID	AR1999030778	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000622	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR 635-204	
DISCHARGE REASON		
BOARD DECISION	DENY,	
REVIEW AUTHORITY		
ISSUES         1.  191		
2.		
3.		
4.		
5.		
6.