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ABCMR Memorandum of                                                                    AC97-10380
Consideration (cont)

MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:              24 June 1998                
	DOCKET NUMBER:     AC97-10380

	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.  The following members, a quorum, were present:

| Ms. | Karen J. Newsome | | Chairperson
| Mr. | Robert W. Garrett | | Member
| Mr. | James P. Huber | | Member

	Also present, without vote, were:

| Mr. | Loren G. Harrell | | Director
| Mr. | Joseph A. Adriance | | Analyst

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	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:  In effect, that his undesirable discharge be upgraded.

APPLICANT STATES:  In effect, that he was unfairly denied permission to get married and that he was AWOL in Vietnam because his unit moved and he was unable to locate them.

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

On 29 June 1965 the applicant entered the Regular Army for 3 years at the age of 18.  He successfully completed basic training Fort Polk, Louisiana.  

The applicant’s record indicates he served at Fort Lee, Virginia, Fort Gordon, Georgia, overseas in Vietnam, and at Fort Lewis, Washington.  For his Vietnam service he earned the Vietnam Service Medal and the Republic of Vietnam Campaign Medal.  The record also indicates that the highest rank he attained on active duty was private first class/E-3.  The record documents no other acts of valor, achievement; or service warranting special recognition.  However, the record does contain an extensive history of disciplinary infractions which includes the applicant undergoing a trial by summary court-martial, two trials by special court martial, and his acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the UCMJ.

On 22 March 1966 the applicant accepted an NJP for failure to repair on 
21 March 1966.  His punishment for this offense was forfeiture of $22.00 and 
14 days of restriction and extra duty.

On 22 September 1966 the applicant was tried by special court-martial for violation of Articles 86 of the UCMJ for an AWOL period from 30 April 1966 to
24 August 1966.  He was found guilty and sentenced to be confined at hard labor for 5 months; to forfeit $25.00 per month for 5 months; and to be reduced to the rank of private/E-1.

On 17 January 1967 the applicant was tried by summary court-martial for violation of Article 117 of the UCMJ for using provoking words toward another soldier on 9 January 1967.  The applicant was found guilty and was sentenced to forfeit $25.00.

On 8 May 1968 the applicant was again tried by special court-martial for violation of Articles 86 and 134 of the UCMJ.  The first charge was for being AWOL from 22 October 1967 to 21 March 1968.  The second charge was for impersonating a noncommissioned officer on 22 March 1968.  He was found guilty and sentenced to confinement at hard labor for 6 months and to forfeit $64.00 per month for
6 months.
On 12 May 1968 the applicant's unit commander advised the applicant of his intent to separate the applicant from military service for unfitness, under the provisions of AR 635-212.  The unit commander's recommendation was based on the applicant’s record of disciplinary infractions, repeated incidents of AWOL, and constant shirking of duty.  

On 20 May 1968 the applicant consulted counsel and completed his election of rights.  The applicant choose to waive his right to have his case considered by a board of officers and his right to personally appear before a board of officers.  Additionally, he certified his understanding of the possibility that he could encounter substantial prejudice based on receiving a UD and that there could be a loss of benefits as a veteran under federal and state law.

On 22 June 1968 the appropriate authority approved the separation action and directed the applicant be discharged for unfitness and furnished a UD.  Accordingly, on 9 July 1968 the applicant was discharged after completing 
1 year, 10 months, and 15 days of credible active military service, and accruing 426 days of time lost due to AWOL and confinement.

The Special Discharge Review Program (SDRP) was implemented by the Army Discharge Review Board (ADRB) on 4 April 1977.  The SDRP provided for the review of all undesirable discharges or general discharges issued to veterans between 4 August 1964 and 28 March 1973.  On 24 June 1977 the ADRB reviewed the applicant's records under the provisions of the SDRP and denied an upgrade of his discharge.

Army Regulation 635-212, then in effect, provided in pertinent part the policies, procedures, and guidance for the prompt elimination of enlisted personnel who were determined to be unfit for further military service.  Individuals discharged under this regulation would normally be issued a UD.

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 contentions that he was unfairly denied permission to get married and that his AWOL in Vietnam was the result of his unit moving were  noted by the Board. However, the Board determined they are not supported by either the evidence of record or independent evidence provided by the applicant. The discharge proceedings were conducted in accordance with law and regulation applicable at the time.  The reason for and the character of the discharge are commensurate with the applicant's overall record of military service.

2.  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.

3.  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

________  ________  ________  DENY APPLICATION

						Loren G. Harrell
						Director