MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:    

	BOARD DATE:           19 December 2002                   
	DOCKET NUMBER:   AR2002075531

	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	
	Mrs. Joyce A. Hall		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor		Chairperson	
	Mr. Kelley Stanley		Member	
	Mr. Harry B. Oberg		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:  Reconsideration of his earlier request to the Army Board for Correction of Military Records (ABCMR) to upgrade his undesirable discharge.

APPLICANT STATES:  In effect, he contends that that he was wrongfully discharged.  He alleges that racial discrimination was a factor in his undesirable discharge.  He also contends that he was told that his discharge would be upgraded automatically within 90 days after his discharge.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in the ABCMR's previous consideration of the applicant's case in Docket Number AC88-09716 on 6 September 1989.
The applicant's contention that he was the victim of racial discrimination is a new argument, which could be considered by the Board. 

The facts and circumstances surrounding the applicant's discharge are not present in the available records.  However, they were apparently available when the Army Discharge Review Board denied his request to upgrade his discharge on 1 April 1981. 

Army Regulation 635-200 sets forth the basic authority of 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 charges have been preferred and must include the individual’s admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

Army Regulation 15-185 sets forth the policy and procedures for the ABCMR.  It provides that, if a request for reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence that was not in the record at the time of the Board’s prior consideration.  This includes but is not limited to any facts or arguments as to why relief should be granted.  The staff of the Board is authorized to determine whether or not such evidence has been submitted.

The regulation provides further guidance for reconsideration requests that are received more than one year after the Board’s original consideration or after the Board has already reconsidered the case.  In such cases, the staff of the Board will review the request to determine if substantial relevant evidence has been submitted that shows fraud, mistake in law, manifest error, or if there exists substantial relevant new evidence discovered contemporaneously with or within 

a short time after the Board’s original decision.  If the staff finds such evidence, the case will be resubmitted to the Board.  If no such evidence is found, the application will be returned without action.

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.

Army Regulation 635-200, paragraph 3-7, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the soldier's separation specifically allows such characterization.

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.  There is no evidence and the applicant has provided no evidence, to support his allegation that his discharge was based on discrimination.

2.  The Board noted that there is no evidence and the applicant has provided no evidence, that the Army has ever had, a policy to automatically upgrade discharges.  The Army Discharge Review Board and the ABCMR reviews each request for a discharge upgrade on its own merits.  Upgrade of a discharge may be warranted only if it is determined that the characterization of service or the reason for discharge or both were improper or inequitable. 

3.  Based on the applicant's record of indiscipline, the Board determined that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant did not meet the criteria for an honorable discharge.  The Board also determined the applicant's service was not satisfactory; therefore, he did not meet the criteria for a general discharge.

4.  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.
5.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

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:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__RVO __  ____SK__  __HBO__  DENY APPLICATION

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

INDEX

CASE ID	AR2002075531	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/12/19	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1981/04/01	
DISCHARGE AUTHORITY	AR635-200, Chap 10	
DISCHARGE REASON	A70.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.7000	
2.		
3.		
4.		
5.		
6.