MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           14 January 2003                  
	DOCKET NUMBER:   AR2002073614

	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. G. E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Ms. Jennifer L. Prater		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)

APPLICANT REQUESTS:  That his discharge be upgraded.

APPLICANT STATES:  That he was wrongfully discharged, that he suffered discrimination based on his race and that he has an honorable discharge from the Colorado Army National Guard, and that he did nothing wrong.  He also states that he was told that he would get an automatic upgrade.

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

The applicant enlisted in the Colorado Army National Guard and served on active duty for training from 12 March through 11 June 1976, completing basic combat training and advanced individual training without reported incident.  He was ordered to active duty on 14 February 1977.  

On 7 April 1977, the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for failure to go to his appointed place of duty and for being incapacitated for proper performance of his duties due to prior consumption of liquor.

On 2 May 1977, the applicant again received NJP for failure to go to his appointed place of duty and for failure to follow a direct order.

The applicant's record contains no documentation of the processing of the applicant's request for discharge in lieu of trial by court-martial, except a 3 May 1977 DA Form 268 (Report of Suspension of Favorable Personal Actions) that shows that the service member was being discharged under chapter 10, Army Regulation 635-200.

A letter, dated 29 June 1977, tasked three individuals to act as prisoner escorts for the applicant from the Manheim Confinement Center to the Bamberg Law Center.  There is no documentation as to why the applicant was a prisoner.  

Although the discharge packet is not of record, the evidence of record shows that the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial.  In connection with such a discharge, the applicant would have to have been charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  Procedurally, the applicant was required to consult with defense counsel and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  In doing so, the applicant admitted guilt to the stipulated offenses under the UCMJ.  

The applicant was discharged as a Reservist, under Army Regulation 635-200, chapter 10, on 11 July 1977.  His characterization of service is listed as under other than honorable conditions.  He had 4 months and 28 days of creditable service during this period.  
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.  An under other than honorable conditions discharge is normally considered appropriate.  

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, and applicable law and regulations, it is concluded:

1.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with his overall record.

2.  There is no evidence of any type of discrimination to support the applicant's contentions.

3.  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.

4.  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__  __JLP___  __MMP__  DENY APPLICATION

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

INDEX

CASE ID	AR2002073614	
SUFFIX		
RECON		
DATE BOARDED	200301141	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.00	
2.		
3.		
4.		
5.		
6.