MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 9 April 2002
         DOCKET NUMBER: AR2002067842

         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
Mr. Raymond J. Wagner		Member
Mr. Donald P. Hupman, Jr.		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 undesirable discharge be upgraded to honorable, that his narrative reasons for separation be changed to reflect that he was separated at the convenience of the government, that his Reenlistment (RE) Code be changed to a “1” and that his separation program designator be changed accordingly.

APPLICANT STATES: In effect, that clemency is warranted in his case because it is an injustice for him to suffer the consequences of a bad discharge. He further states that his ability to serve was impaired by youth, immaturity, personal problems and his strong obligation to help his parents in their time of need. He goes on to state that his mother was his whole world at the time and she became ill. His father’s health was also failing and he went absent without leave (AWOL) to care for his parents. When he attempted to request a hardship discharge, he was denied and was told things were not bad enough, and that he was just being a baby. He also states that after his discharge, he moved his parents from Spokane, Washington, to the Coeur d’ Alene Indian Reservation in Idaho, and did the best he could for them till they passed away in 1983 (mother) and 1993 (father). He contends that he has been a good citizen to his community since his discharge and provides two letters of support with his application.

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

He enlisted with parental consent in Spokane, Washington, on 29 September 1972, for a period of 3 years, training as a vehicle mechanic and assignment to Fort Lewis, Washington. He completed his training and was assigned to Fort Lewis on 21 May 1973. He was advanced to the pay grade of E-3 on 28 October 1973.

On 28 November 1973, nonjudicial punishment (NJP) was imposed against him for being AWOL from 9 November to 18 November 1973. His punishment consisted of a reduction to the pay grade of E-2, a forfeiture of pay (suspended for 1 month), extra duty and restriction.

On 31 January 1974, NJP was imposed against him for being AWOL from 22 January to 23 January 1974. His punishment consisted of a forfeiture of pay, extra duty and restriction.

The applicant was convicted by a special court-martial on 20 March 1974, of being AWOL from 13 February to 2 March 1974. He was sentenced to confinement at hard labor for 2 months, reduction to the pay grade of E-1 and a forfeiture of pay.

The applicant was transferred to the Army Retraining Brigade at Fort Riley, Kansas, to serve his confinement. Upon serving his confinement, he was transferred to Fort Bragg, North Carolina on 20 June 1974. He again went AWOL for 1 day from 19 August to 20 August 1974 and then again on 4 September 1974. He remained absent until he was returned to military control at Fort Leonard Wood, Missouri on 8 September 1974, and charges were preferred against him.

On 13 September 1974, 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 submit a statement in his own behalf whereas he asserted that he wanted to get out of the Army because he could not take all of the “bull” that is put out to privates, that he had a family that was having problems paying their bills and he could be of more help there than in the Army, and because it was costing the Army too much money to keep bringing him back when he went AWOL.

The appropriate authority (a major general) approved his request on 1 October 1974 and directed that he be furnished with an Undesirable Discharge Certificate.

Accordingly, the applicant was discharged under other than honorable conditions on 4 October 1974, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 1 year, 8 months and 28 days of total active service and had 97 days of lost time due to AWOL and confinement.

A review of his records fails to show any indication that the applicant ever requested a hardship discharge or made it known to his chain of command that his presence was needed at home.

The supporting third party statements submitted by the applicant with his application indicates that the applicant is trustworthy, strongly family oriented, firmly knitted to his Indian culture and heritage and is an integral part of reservation development and cultural life.

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. 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 his circumstances of his case that are present in the available records.

4. While the Board has noted the applicant’s contentions and commends his good post-service conduct, they are not sufficiently mitigating to warrant relief given his overall undistinguished record of service.

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

____rvo _ __dh____ __rjw ___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002067842
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/04/09
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1974/10/04
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.