MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 28 February 2002
         DOCKET NUMBER: AR2001064419

         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. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor, Jr.		Chairperson
Ms. Celia L. Adolphi		Member
Mr. John T. Meixell		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: That his discharge under other than honorable conditions be upgraded to a general discharge.

APPLICANT STATES: In effect, in an eight page handwritten explanation, that his discharge has remained a shame that he has lived with for over 24 years and was the result of bad decisions he made at a young age. He further states that his problems began in Korea, where he got frostbite on his hands while taking a physical fitness test. After being hospitalized and treated, he was initially told that he would be returned to the United States and would be assigned to a warm climate. However, that never materialized, despite his efforts to request a transfer. He goes on to state that he was then arrested and accused of possession of opium cigarettes. Nonjudicial punishment was imposed against him that resulted in his being reduced from the pay grade of E-4, a forfeiture of pay and extra duty and restriction. After having served the punishment, it was discovered that the lab report on the substance proved negative and his punishment was set aside. He also states that he was supposed to have his rank restored at his next duty station, which also turned out to be a cold climate area. He was transferred to Fort Carson, Colorado, where they were having their worst winter in 25 years and where his frostbite condition continued to plague him. Despite his attempts to be transferred, he was required to remain and to perform lots of cold weather field duty. He continues by stating that his platoon leader did not want him to go and when he requested leave to go home and see his sister, who was having an operation, he was denied leave because he had to participate in yet another field exercise. At that point he went on a 3-day drinking binge and caught a plane home, where he remained until he surrendered to local authorities and was returned to military control at Fort Sill, Oklahoma. He also states that he made a terrible mistake, that he let his country, the Army and himself down; however, he does not believe that the Army lived up to its promises as well.

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

He enlisted on 23 April 1975 at the age of 18 for a period of 4 years, assignment to Korea, a cash enlistment bonus and training as an infantryman. He successfully completed his training and was transferred to Korea on 7 September 1975, for duty as an infantry indirect fire crewman.

The evidence of record shows that on 23 January 1976, the applicant was admitted to the 121^st Evacuation Hospital in Seoul, Korea, for treatment of 2^nd and 3^rd degree frostbite to the hands. The records show that on 19 January 1976, the applicant along with others in his unit had removed their gloves during a physical fitness test, against instruction to the contrary, in an effort to obtain a better score. As a result of removing their gloves during the horizontal bar event, they received frostbite injuries. The applicant’s injury was determined to be in the line of duty. There is no indication that he was issued a physical profile or that any assignment limitations were made.

On 22 March 1976, while serving in the pay grade of E-3, nonjudicial punishment (NJP) was imposed against him for being absent without leave from 1 March to 2 March 1976. His punishment consisted of a forfeiture of pay, extra duty and restriction.

On 4 May 1976, NJP was imposed against him for wrongful possession, on 3 May 1976, of five ounces, more or less, of marijuana. His punishment consisted of a forfeiture of pay, extra duty and restriction. He did not appeal the punishment; however, on 21 August 1976, the punishments were set aside because the lab test conducted on the substance, thought to be marijuana, proved negative. All rights, property and privileges were restored back to the applicant.

Meanwhile, on 10 June 1976, NJP was imposed against him for failure to go to his place of duty. His punishment consisted of extra duty and restriction.

He was advanced to the pay grade of E-4 on 1 September 1976 and departed Korea on 6 September 1976, for assignment to Fort Carson.

On 27 May 1977, NJP was imposed against him for being AWOL from 13 April to 4 May 1977, 6 May to 9 May 1977 and 13 May to 18 May 1977. His punishment consisted of a reduction to the pay grade of E-2, a forfeiture of pay, extra duty and restriction.

He again departed AWOL on 1 June 1977, and remained absent until he was apprehended by civil authorities in Sallisaw, Oklahoma and was returned to military control at Fort Sill, Oklahoma, on 16 December 1977, where charges were preferred against him.

On 30 December 1977, after consulting with counsel, the applicant submitted a request for discharge for the good of the service, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. In his request, he indicated that he was making the request of his own free will, without coercion from anyone and that he was aware of the implications attached to his request. He also admitted that he was guilty of the charges against him, or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge. He further elected to not submit a statement in his own behalf.

The appropriate authority (a major general) approved his request on 13 January 1978, and directed that he be discharged under other than honorable conditions.

Accordingly, he was discharged under other than honorable conditions on 20 January 1978, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 2 years, 1 month, and 21 days of total active service and had 221 days of lost time due to AWOL.

There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of the 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 charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A condition of submitting such a request is that the individual concerned must admit guilt to the charges against them or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and they must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive. A discharge under other than honorable conditions is normally considered appropriate.

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 applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.

2. Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3. After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records. In doing so he admitted guilt to the charges against him. While he may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date, especially considering the number and length of his absences as well as his otherwise undistinguished record of service during such a short period of time.

4. The applicant’s contentions have been noted by the Board. However, they are not supported by any evidence submitted by the applicant with his application, or the evidence of record. Accordingly, the Board finds that his contentions are not sufficiently mitigating when compared to his otherwise undistinguished record of service over such a short period of time.

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

____jm__ __rvo ___ __cla____ DENY APPLICATION

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

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INDEX

CASE ID	AR2001064419
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/02/28
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	1978/01/20
DISCHARGE AUTHORITY	AR635-200/ch10
DISCHARGE REASON	Gd of svc
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 689	144.7000/a70.00
2.
3.
4.
5.
6.