MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           25 September 2001
	DOCKET NUMBER:   AR2001058690

	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. William Blakely		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Lester Echols		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, that his undesirable discharge (UD) be upgraded to an honorable discharge (HD). 

APPLICANT STATES:  In effect, that he voluntarily requested that be separated from the Army and was told that his discharge would be automatically upgraded. He also states that he didn’t understand what was expected of him and that he needed help as a result of suffering a nervous breakdown and his alcoholism.  In support of his application, he submits a Statement In Support Of Claim Form 
(VA Form 21-4138).

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

On 8 April 1966, he entered the Army for 3 years.  He successfully completed training, was awarded military occupational specialty (MOS) 70A (Clerk Typist) and was assigned to Germany for his first permanent duty station. 

The applicant’s record shows that the highest rank he attained was private first class/E-3 and that he earned the following awards during his active duty tenure: Air Medal; Vietnam Service Medal; and National Defense Service Medal.  

The applicant served in Germany from 6 November 1966 to 7 April 1967 without incident and was then assigned to Vietnam, where he arrived for duty on 10 May 1967.  

On 10 December 1967, the applicant accepted nonjudicial punishment (NJP) for wrongfully appropriating a truck and for providing the gate guard a false name.  On 23 December 1967, he again accepted NJP for wrongfully appropriating a truck.  He completed his tour of duty in Vietnam on 9 May 1968, and was assigned to Fort Dix, New Jersey. 

On 22 January 1969, the applicant was convicted by a special court-martial of being absent without leave (AWOL) from 2 August to 19 December 1968.  He was sentenced to 3 months confinement at hard labor and a  forfeiture of $50.00 pay per month for 3 months.

The applicant’s discharge packet is missing from his military records.  However, the record does contain a properly constituted separation document (DD Form 214), which shows that on 9 November 1976, he was administratively discharged with an UD, under the provisions of chapter 10, Army Regulation 635-200 for the good of the service/ in lieu of trial by court-martial.  At the time of his discharge he had completed a total of 2 years, 5 months and 1 day of creditable active military service and had accrued 2,980 days of time lost due to AWOL and confinement.  

The VA Form 21-4138 provided by the applicant chronicles his difficulties prior to and after his discharge.  

There is no evidence to show the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statue of limitations.

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 UD.

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 contentions that he was unaware of what was expected of him, that he needed help after his nervous breakdown and for his alcoholism, and that he was told his discharge would automatically be upgraded. However, the Board finds there is insufficient evidence to support these claims. 

2.  The US 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 requesting a change in discharge.  Changes may be warranted if the Board determines that the discharge was improper or inequitable. 

3.  The applicant’s record is void of the specific facts and circumstances concerning the events that led to his discharge from the Army.  However, the Board notes the record contains a properly constituted DD Form 214, which was authenticated by the applicant with his signature.  This document contains the authority and reason for his separation and therefore, the Board presumes government regularity in the discharge process.  

4.  The separation document confirms that the applicant was discharged in lieu of trial by court-martial.  Procedurally, this would have required him to consult with legal counsel after being charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  In addition, he would have had to voluntarily request separation after admitting guilt to the stipulated offense under the UCMJ. 

5.  In view of the foregoing, there is no basis for granting the applicant 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

__JNS___  ___LE___  __REB___  DENY APPLICATION

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

INDEX

CASE ID	AR2001058690	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/09/25	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	19761109	
DISCHARGE AUTHORITY	AR 635-200.  .  .  .  .  	
DISCHARGE REASON	For the good of the service 	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1. 93.19	71.00	
2. 93.23		
3.		
4.		
5.		
6.