MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 2 October 2001
         DOCKET NUMBER: AR2001059328

         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. Margaret K. Patterson		Chairperson
Ms. Karol A. Kennedy		Member
Mr. Richard T. Dunbar		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)

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APPLICANT REQUESTS: In effect, that his undesirable discharge (UD) be upgraded.

APPLICANT STATES: In effect, that his discharge was too harsh considering other soldiers with similar offenses received general, under honorable conditions discharges (GD). He met soldiers during his confinement who had their discharges upgraded, most were white while he is a native American. He indicates he accepted the advice of counsel that he should accept the discharge offered or face six months in confinement at hard labor. He claims he accepted the discharge because he needed to be home with his family and had only gone absent without leave (AWOL) after going home on leave and discovering his family had serious problems. He later turned himself in and discovered many members who had been gone for much longer periods were receiving more favorable discharges. He claims that if President Nixon could grant pardons for deserters his request for an upgrade to his discharge should be favorably considered. He states that his orders assigning him to Fort Riley, Kansas shows he was authorized leave and his family problems were so severe that going AWOL was his only option.

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

On 21 December 1970, the applicant enlisted in the Army for 3 years. He successfully completed training and was awarded military occupational specialty (MOS) 63K (Heavy Equipment Repairer).

The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition and confirms that highest rank he attained while on active duty was specialist/E-4 (SPC/E-4). However, it does show an extensive disciplinary history that includes his acceptance of nonjudicial punishment (NJP) on the seven separate occasions. Six for failure to go to his prescribed place of duty and one for disobeying a lawful order.

The applicant’s AWOL history shows that he was AWOL from 20 to 21 May 1973 and again from 26 July to 4 October 1973. On 5 October 1973, after returning to military control at the Personnel Control Facility, Fort Hood, Texas, a
court-martial charge was preferred against him for his being AWOL from 26 July to 4 October 1973. He consulted legal counsel and after being advised of the basis for the contemplated trial by court-martial he voluntarily requested to be discharged for the good of the service/in lieu of trial by court-martial. He submitted a statement in his own behalf in which he indicated that his pay, family, and marital problems were the reasons for his going AWOL.

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The applicant’s request for discharge was approved by the appropriate authority and on 1 November 1973, he was separated from the Army with an UD under the provisions of Army Regulation 635-200, chapter 10 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, 8 months, and 1 day of creditable active military service and had accrued a total of 71 days of lost time due to AWOL.

On 15 December 1981, the Army Discharge Review Board determined the applicant’s discharge had been proper and equitable and denied his request for an upgrade.

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 his discharge was too harsh because other soldiers who were separated for similar reasons received honorable type discharges and this could have been the result of his being a native American while most the other soldiers were white but it finds these claims lack merit.

2. While the Board takes any allegation of prejudice seriously and would never let stand any action that were taken based on ethnic or racial bias, in this case it finds no evidence to show this condition existed in the applicant’s discharge processing. In addition, the type of discharge other soldiers received is not relevant to the applicant’s case and Army policy dictates that each case be decided on its own merits based on the unique facts and circumstances of that particular case.

3. The Board also considered the applicant’s claim that he had family problems that contributed to his misconduct but concludes this factor is not sufficiently mitigating to warrant the requested relief. The Board finds the type of discharge received by the applicant was appropriate based on the offense he committed and accurately reflects the overall character of his service given his extensive disciplinary history.

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4. The record confirms that the applicant was discharged for the good of the service/in lieu of trial by court-martial. Procedurally, this 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 and 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.

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 this 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:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__MKP___ __KAK__ __RTD__ DENY APPLICATION

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

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INDEX

CASE ID	AR2001059328
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2001/10/10
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	144.0000
2.
3.
4.
5.
6.