Author: WoodsHN

ABCMR Memorandum of                                                                    AC97-11121
Consideration (cont)

MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:              6 May 1998                
	DOCKET NUMBER:     AC97-11121

	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:

| Mr. | Samuel A. Crumpler | | Chairperson
| Mr. | Karen J. Newsome | | Member
| Mr. | Raymond V. O’Connor JR. | | 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 (UD) be upgraded.

APPLICANT STATES:  In effect, that the reason for his discharge was unjust.

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

On 21 March 1968 the applicant was inducted into the Army of the United States for a period of 2 years at age 19.  

The applicant's record of service indicates the highest grade he held on active duty was private/E-2 and contains no documented evidence of acts of achievement, valor, or service meriting special recognition.  However, there is an extensive record of disciplinary infractions which include: two special court-martial convictions; repeated incidents of AWOL; and military confinement.

On 5 May 1968, while still in basic combat training, the applicant went AWOL and remained absent for 24 days until 28 May 1968.  He again went AWOL on 29 June 1968, from the special processing detachment at Fort Riley, Kansas, and remained absent 49 days until 18 August 1968.  The applicant began another period of AWOL, by absenting himself from the special processing detachment at Fort Sill, Oklahoma, on 20 August 1968 and remained away 
142 days until 11 January 1969.  The applicant was in military confinement for 
70 days from 12 January to 21 March 1969 pending trial by court-martial.

On 28 March 1969 the applicant was tried by special court-martial for the 
29 June to 18 August 1968, and the 20 August 1968 to 12 January 1969, AWOL periods discussed in the proceeding paragraph.  His sentence was confinement at hard labor for 6 months (suspended) and forfeiture of $68.00 per month for 
6 months.

On 22 March 1969 the applicant again went AWOL for 33 days until 24 April 1969.  On 12 May 1969 the unexecuted portion of the confinement at hard labor punishment contained in the special court-martial sentence, adjudged on 
28 March 1969, was vacated and the applicant was placed in confinement at the post stockade at Fort Riley, Kansas.

On 29 May 1969 the applicant was again tried by special court-martial for the last AWOL period contained in the proceeding paragraph.  He was sentenced to confinement at hard labor for 6 months and to forfeit $68.00 per month for 
6 months.

On 28 July 1969 the applicant’s unit commander advised the applicant of his intention to initiate action to separate him ,under the provisions of
AR 635-212 for unfitness, based on frequent incidents of a discreditable nature with military authorities.  The commander cited as his reasons for the recommendation the applicant’s repeated AWOL infractions; record of court-martial convictions; and the applicant’s failure to respond to rehabilitative efforts of the correctional training unit at Fort Riley, Kansas.

On the same date the applicant consulted counsel and completed his election of rights by making the following elections:  to waive his right to consideration of his case before a board of officers; to waive his right to personal appearance before a board of officers; to waive representation by counsel; and he elected not to make a statement in his own behalf.  The unit commander forwarded his recommendation to separate the applicant for unfitness, and in a 1st endorsement the first intermediate level commander recommended approval of the separation action and recommended he receive a UD.  

On 1 August 1969 the appropriate authority approved the discharge and directed the applicant receive a UD.  Accordingly, on 11 August 1969 the applicant was discharged after completing 2 months and 17 days of active military service, and accruing 424 days of time lost due to AWOL and confinement.

On 31 October 1974 the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade to his discharge and found that the discharge process was proper in all respects.

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 Board found no evidence of arbitrary or capricious action on the part of the chain of command.  However, there is a preponderance of evidence to suggest that 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