MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 16 October 2003
         DOCKET NUMBER: AR2003088960

         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
Ms. Deyon D. Battle		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Hubert O. Fry		Member
Ms. Mae M. Bullock		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 an honorable or a general discharge.

APPLICANT STATES: That he decided to enlist in the Army to get his high school diploma and to stand up for his country while others protested and deserted. He states that when he was transferred to Germany, he could not take his wife and family with him because he was only a private (E-3) and that others who enlisted in the Army after him, were being promoted before him. He further states that as a result of personality clashes between he and his commanding officer he began to receive nonjudicial punishments (NJP) which resulted in loss of pay and it ultimately hurt his family. He states that he was placed on permanent guard duty and that he never missed a shift.

The applicant goes on to state that one day while he was on guard duty, he was ordered to report to the captain and that when he arrived several officers told him to open his locker. He states that he had two smoking pipes that belonged to him and a group of other soldiers inside of his locker. He states that the pipes were confiscated and after testing, they were determined to contain .032 grams of hashish. He states that a pistol was also confiscated from his locker and that he purchased the pistol from another soldier who had just left to go home. He states that he was appointed a Judge Advocate General lawyer who advised him to request a chapter 10, to avoid trial by court-martial. He states that he does not know what sentence he would have received if he had opted to stand trial by a court-martial; however, it would have been better than all of the embarrassment, explaining and missed employment opportunities that his family has suffered. He concludes by stating that it has been more than 30 years since his discharge and that he deserves better after standing up for his country.

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

On 30 November 1970, he enlisted in the Army in Chicago, Illinois, for 3 years in the pay grade of E-1. He successfully completed his training as a pioneer. He was promoted to the pay grade of E-2 on 30 March 1971. He was transferred to Germany on 24 April 1971.

On 13 May 1971, NJP was imposed against him for being absent without leave from 11 May until 13 May 1971. His punishment consisted of a forfeiture of pay and restriction to the company area.

The applicant was promoted to the pay grade of E-3 on 9 June 1971.

On 7 March 1972, NJP was imposed against him for leaving his place of duty before being relieved. His punishment consisted of restriction to the barracks.

Charges were preferred against the applicant on 28 February 1972, for having in his possession a .22 caliber pistol and two pipes containing marijuana and for two specifications of failure to obey a lawful order. He was notified of the charges pending against him and on 2 March 1972, after consulting with counsel, he submitted a request for discharge under the provisions of Army Regulation
635-200, chapter 10, for the good of the service, in lieu of trial by court-martial. Along with his request for discharge, he submitted a statement in his own behalf indicating that he enlisted in the Army after being released from a boys home in 1969. He stated that he was unable to adjust to military life and that he wanted to be discharged. He further stated that he wanted a discharge under honorable conditions; however, he wanted to be discharged regardless of the type of discharge he would receive because he intended to go to Arkansas and help his brother with his legal defense. He concluded by stating that eventually, he wanted to return home and work in his grandmother’s store.

The appropriate authority approved the request for discharge on 10 May 1972. Accordingly, on 19 May 1972, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of trial by court-martial. He had completed 1 year, 5 months and 20 days of total active service and he was furnished an Undesirable Discharge Certificate.

There is no evidence of record that shows that the applicant 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 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 undesirable discharge.

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 administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors, which would tend to jeopardize his rights.

2. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3. The Board has noted the applicant’s contentions. However, he had NJP imposed again him once for being AWOL and once for leaving his place of duty prior to being relieved. Charges were preferred against him for two specifications of disobeying a lawful order and for having in his possession two pipes containing marijuana and a .22 caliber pistol.

4. The applicant chose to request an administrative discharge rather than risk the consequences of a court-martial. Although he may now feel that he made the wrong choice, he should not be allowed to change his mind at this late date

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

__mb ___ ___hof __ ___ao ___ DENY APPLICATION

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

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INDEX

CASE ID	AR2003088960
SUFFIX
RECON
DATE BOARDED	2003/10/16
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	19720519
DISCHARGE AUTHORITY	AR 635-200, CH 10
DISCHARGE REASON	689/FOR THE GOOD OF THE SERVICE
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 708	144.7100/CONDUCT TRIABLE BY CM
2. 717	144.7400/DRUGS
3.
4.
5.
6.