MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           17 February 1999       
	DOCKET NUMBER:   AC97-07196A
				   AR1999018411

	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. Loren G. Harrell		Director	
	Mr. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Charles H. Loundermon		Chairperson	
	Mr. Fred N. Eichorn 		Member	
	Mr. John Saputo		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 bad conduct discharge be upgraded to honorable.

APPLICANT STATES:  That he was 17 years old when he enlisted and had all intentions of defending his country.  The pressure [that he was under] because his mother was dying caused him to go AWOL.  

He completed 17 weeks of basic training and 5 weeks of airborne training and while at Fort Benning, Georgia, he received news that his mother was ill and not expected to live.  He requested permission to go home, and after waiting 5 days with no furlough, he went AWOL for 28 days, after which he turned himself in.  He was then court-martialed, given six months in the stockade and a bad conduct discharge.  

(NOTE:  The Board considered the applicant’s request on 4 February 1999 and, although they voted to deny relief, the Board determined that the applicant’s failure to file within the statutory time limits should be excused.  Hence the applicant’s case had been reconstituted to excuse his failure to timely file.)

EVIDENCE OF RECORD:  The applicant's military records were lost or destroyed in the National Personnel Records Center fire of 1973.  Information herein was obtained from alternate sources.

On 7 April 1951 the applicant made out a $25.00 allotment with his father as the alottee.

A 2 October 1951 record of the applicant’s previous convictions prepared by the post guardhouse at Fort Jay, New York indicate that he was found guilty by a summary court-martial on 19 March 1951 for breaking restriction by going AWOL; and was found guilty by a summary court-martial on 13 April 1951 for breaking restriction.

A 3 October 1951 record of trial by a general court-martial which convened at Fort Jay indicates that the applicant enlisted in the Army on 4 January 1951 for three years, and was assigned to the Medical Company of the 30th Infantry Regiment at Fort Benning and attached to the 1201st Area Service Unit Military Police and Prisoner Guard Detachment at Fort Jay at the time of the court-martial.  The applicant was 19 years old at that time, his date of birth being       20 September 1932.  The applicant was charged with escaping from lawful confinement from the post guardhouse.  Evidence introduced in that trial was a   1 August 1951 confinement order.  This order indicated that the applicant had been AWOL since 15 June 1951.  The applicant pled not guilty to the charge.

The record of trial shows that the applicant stated that he was in the National Guard for a year and a half prior to joining the Army, that he had a 16 year old and a 5 month old sister, that his father was unable to work, and his mother did not work.  He stated that he went AWOL on 3 March 1951 because matters were bad at home, he worked for a week at home, turned his pay in [to his family] and returned from AWOL.  He stated that he committed the offense for which he was charged, because he was worried about his family.  He tried to see the Chaplain, the adjutant, etc., but could see no one.

Cross examination revealed that the applicant stated that he was making forty to forty-five dollars a week prior to his joining the Army, where he was now making eighty dollars a month; however, the applicant stated that he did not realize anything like [his situation] would happen.  He stated that he was the family’s sole provider, that his father did not work at all.  

The applicant’s father testified, stating that he [the father] had been hospitalized, that his wife had a baby five months ago [May 1951], and that she was still having doctor’s treatment.  The record indicates that the applicant’s father received outpatient treatment at Boston City Hospital from 5 May 1951 to            7 July 1951.  The applicant’s father stated that he had worked sporadically during the last few months, that he was in debt, that his son helped out prior to joining the Army, and brought in some money to the family during his 28 days of AWOL.

The applicant admitted that he had not tried to get a leave the first time that he went AWOL.  

Letters from family friends were submitted into the record.  The essence of those letters indicate that the family was having a difficult time because of the father’s illness, and the mother’s post-birth illness, and because of the applicant’s enlistment in the Army.

The applicant was found guilty of the charge and sentenced him to be discharged from the Army with a bad conduct discharge, to forfeit $50.00 a month for six months, and to be confined at hard labor for six months. 

The applicant was discharged on 11 January 1952.

The maximum punishment for escaping from confinement authorized under the MCM is a dishonorable discharge, confinement at hard labor for one year, and forfeiture of all pay and allowances.

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.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

2.  The applicant's contention that he was young and immature at the time is not sufficiently mitigating to warrant relief. The Board notes that the applicant was over 18 years of age at the time of his first AWOL, had served in the National Guard prior to his enlistment in the Army, and completed 17 weeks of training, plus five weeks of airborne training.

3.  There is no evidence of record to substantiate the applicant's claim that military authorities were aware of the type or extent of his personal problems.  He himself states that he had not tried to obtain leave prior to his first AWOL. 

4.  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 the aforementioned requirement

5.  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

__chl___  __fne___  ___js_____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC97-07196A/AR1999018411	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990217	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1. 105.00		
2. 110.00		
3.		
4.		
5.		
6.