MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:          14 March 2002
	DOCKET NUMBER:   AR2001063300

	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:

	Ms. JoAnn H. Langston		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Roger W. 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:  In effect, that his undesirable discharge (UD) be upgraded.

APPLICANT STATES:  In effect, that he suffered a back injury during basic combat training (BCT) and is now totally disabled.  He states that he was informed that his discharge would be automatically upgraded to fully honorable within six months.  

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

On 26 August 1968, the applicant was inducted into the Army of the United States 2 years.  He successfully completed training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  

The applicant’s record confirms that highest rank he attained while on active duty was private/E-2 and it documents no acts of valor, significant achievement, or service warranting special recognition.  However, the record does reveal an extensive disciplinary history.  This includes his conviction of being absent without leave (AWOL) from 4 January to 10 April 1969 by a special court-martial on 28 March 1969.  In addition, his record shows he was AWOL on the following three separate occasions:  1 September to 29 October 1969; 24 November 1969 to 23 February 1970; and 14 March to 15 March 1970.

The applicant’s discharge packet containing the specific facts and circumstances surrounding his discharge processing is not in the record.  However, there is a properly constituted separation document (DD Form 214) on file.  This document contains the authority and reason for discharge and was authenticated by the applicant with his signature on the date of his separation.  The DD Form 214 confirms that he was separated with a UD on 3 April 1970, 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 separation, he had completed only 10 months and 28 days of credible active military service and he had accrued 248 days of time lost due to AWOL.

There is no evidence that the applicant applied to the Army Discharge Review Board for 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 submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after court-martial charges have been preferred and must include the individual’s admission of guilt.  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 contentions of the applicant that he is now disabled due to a back injury that occurred in BCT and that he was told his discharge would be upgraded in 6 months.  However, it finds insufficient evidence to support these claims.  

2.  The applicant’s record is void of facts and circumstances concerning events that led to a discharge from the Army.  The Board notes that his record contains a properly constituted DD Form 214, which he authenticated with his signature on the date of his separation, and the Board presumes government regularity in the discharge process.  

3.  The DD Form 214 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(s) punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  In addition, after receiving legal counsel, he would have had to voluntarily request separation after admitting guilt to the stipulated offense(s) under the UCMJ.

4.  In the absence of information to the contrary, 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 applicant’s discharge accurately reflects his overall record of service. 

5.  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 requests a change in discharge.  An upgrade of a soldier’s discharge may be warranted if the Board determines that the discharge was in error or unjust.  The Board found no evidence in the file that would satisfy this requirement.

6.  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.

7.  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

__JHL__  __WTM__  __RWA___  DENY APPLICATION

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

INDEX

CASE ID	AR200106330	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/03/14	
TYPE OF DISCHARGE	(UD)	
DATE OF DISCHARGE	19700403	
DISCHARGE AUTHORITY	AR635-200, Chapter 10 .  .  .  .  .  	
DISCHARGE REASON	For the Good of the Service	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	70.00	
2.		
3.		
4.		
5.		
6.