MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 6 May 2003
         DOCKET NUMBER: AR2002083076

         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. Fred N. Eichorn		Chairperson
Ms. Lana E. McGlynn		Member
Mr. Larry C. Bergquist		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.

APPLICANT STATES: In effect, that he was the only native American in his unit and was subjected to discrimination and harassment. He goes on to state that he was given the worst details and was being ordered around continuously. He further states that he got tired of being ordered around and could not take the humiliation any longer, so he went absent without leave (AWOL). He also states that he did not have competent representation and was not advised of his rights; therefore, he begs the Board to upgrade his discharge due to the circumstances of prejudice.

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

He enlisted in the Regular Army in Fargo, North Dakota, on 31 August 1972, for a period of 3 years and training in the mechanical maintenance career management field. He successfully completed his training and was transferred to Korea on 21 March 1973, for duty as a crane operator. He was advanced to the pay grade of E-3 on 30 August 1973.

He departed Korea on 24 March 1974 and was transferred to Fort Bragg, North Carolina.

On 19 August 1974, nonjudicial punishment (NJP) was imposed against him for being AWOL from 9 July to 7 August 1974. His punishment consisted of a reduction to the pay grade of E-2, a forfeiture of pay and extra duty.

He was again advanced to the pay grade of E-3 on 1 December 1974 and on 31 January 1975, NJP was imposed against him for being AWOL from 21 January to 25 January 1975. His punishment consisted of a reduction to the pay grade of E-2, a forfeiture of pay, extra duty and restriction.

On 6 June 1975, NJP was imposed against him for failure to go to his place of duty. His punishment consisted of a forfeiture of pay and correctional custody for 7 days (suspended for 5 days).

On 8 July 1975, he went AWOL and remained absent until he was returned to military control at Fort Carson, Colorado, on 25 February 1976, where charges were preferred against him for the AWOL offense.

On 11 March 1976, 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 acknowledged that he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge. He further elected to submit a statement or explanation in his own behalf in which he asserted the reasons he went AWOL was that there were too many people telling him what to do, there were too many rules to follow and he did not like being ordered around. He also asserted that if the Army was run better and there was less bossing around, he may not have gone AWOL. He went on to state that he planned to work on his father's ranch after his discharge.

The appropriate authority (a major general) approved his request on 23 March 1976 and directed that he be furnished an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on 19 April 1976, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 2 years, 10 months and 28 days of total active service and had 266 days of lost time due to AWOL.

A review of the available records fails to show that the applicant ever sought the assistance of his chain of command or that he ever surfaced his allegations of discrimination.

There is no indication 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 courtmartial, 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 believes that he made the wrong choice, he should not be allowed to change his mind at this late date, especially considering the length of his absence as well as his otherwise undistinguished record of service during such a short period of time.

4. The Board has noted the applicant’s contentions and finds that they are not sufficiently mitigating to warrant relief under the circumstances. While he may have been experiencing personal problems at the time, there is no evidence to show that he made any attempt to seek assistance from his chain of command to resolve his problems.

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

__lem___ __fe ____ __lb ____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002083076
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/05/06
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1976/04/19
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.