Author: WoodsHN

ABCMR Memorandum of                                                                   AC97-11158
Consideration (cont)

MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:              15 July 1998               
	DOCKET NUMBER:      AC97-11158

	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. | James C. Hise | | Chairperson
| Ms. | JoAnn H. Langston | | Member
| Mr. | Thomas D. Howard 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 to an honorable discharge (HD).

APPLICANT STATES:  In effect that he went home to help his wife when she had a miscarriage; that he was young and didn’t know what to do; that he is a recovering alcoholic and has not had a drink in 15 years; that he goes to church every Sunday; that he has two sons whom he wants the best for; that he needs the upgrade to buy a home for his sons; and that he would like to return to school to make it easier to find a job.

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

On 12 March 1971 the applicant entered the Regular Army for 3 years at the age of 18.  The applicant successfully completed basic training at Fort Polk, Louisiana and advanced individual training (AIT) at Fort Sill, Oklahoma.

The applicant's record indicates that the highest rank he held while on active duty was private/E-2.  There are no documented acts of valor, achievement, or service meriting special recognition.  However, there is an extensive record of disciplinary infractions which includes a trial by special court-martial, and acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the UCMJ, on six separate occasions.

While still in AIT the applicant accepted his first two NJP’s:  the first on 9 June 1971 for being AWOL from 1 to 7 June 1971.  His punishment for this offense was forfeiture of $21.00 and 14 days of restriction and extra duty.  The second, on 29 July 1971 for being AWOL from 7 to 14 July 1971.  The resultant punishment included a forfeiture of $50.00 and 30 days restriction.

On 29 October 1971 the applicant was declared AWOL from the Overseas Replacement Station at Oakland, California, while enroute to the United States Army-Pacific for duty.  On 8 December 1971 the applicant was apprehended and on 9 December 1971 he was returned to military control, and placed in confinement at the Personnel Control Facility (PCF), Fort Knox, Kentucky.

On 27 December 1971 the applicant went AWOL from the PCF at Fort Knox and remained away until 24 January1972.  The applicant was again AWOL from the PCF from 3 to 7 February 1972.  On 16 February 1972 the applicant accepted an NJP for failing to go to his prescribed place of duty.  His punishment was a forfeiture of $25.00 and 14 days of restriction.

On 27 April 1972 the applicant was tried by special court-martial and found guilty of two specifications of violation of Article 86 of the UCMJ:  the first for being AWOL from 29 October to 9 December 1971; and the second for being AWOL from 3 to 8 February 1972.  The resultant sentence included confinement at hard labor for 2 months; forfeiture of $100.00 per month for 2 months; and reduction to the rank of private/E-1.

In May 1972 the applicant was assigned to the Confinement Training Facility (CTF) at Fort Riley, Kansas.  In June of 1972, upon successful completion of his confinement and retraining, he was returned to duty at Fort Lee, Virginia in MOS 76A (Supplyman).  

On 22 September 1972 the applicant accepted another NJP for a period of AWOL from 20 August to 14 September 1972.  His punishment for this offense was to be reprimanded and a reduction to the rank of private/E-1.  On 
10 October 1972 the applicant accepted an NJP for failing to go to his appointed place of duty for which he was punished with a forfeiture of $25.00.

On 24 January 1973 the applicant accepted his last NJP for being AWOL from 
9 to 17 January 1973.  His punishment was a reprimand; 20 days of restriction; and 15 days of extra duty.

On 28 March 1973 the applicant was notified by his unit commander of his intent to propose discharge with a UD, under the provisions of chapter 13, AR 635-200, for unfitness.  On 6 April 1973 the applicant consulted counsel, and after being advised of rights, requested his case be heard by a board of officers.  On 9 May 1973 a board of officers convened, with the applicant and his counsel present,  to hear the case.  The board recommended the applicant’s discharge with issuance of a UD.

On 4 June 1973 the appropriate authority approved the findings of the board and directed the applicant be discharged with a UD.  Accordingly, on 8 June 1973 the applicant was discharged after completing 1 year , 6 months, 28 days of active service, and accruing 239 days of time lost due to AWOL and confinement.

On 11 March 1982 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 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13, then in effect, provided the policy and outlined the procedures for separating individuals for unfitness.  Individuals separated for unfitness would normally receive 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 noted the applicant’s contentions and his desire to improve the quality of life of his family.  However, while the Board is empathetic, the applicant's personal problems are not sufficiently mitigating to warrant an upgrade of his discharge.  The Board concurs with the findings and conclusions of the ADRB and presumes that the applicant's administrative separation was accomplished in compliance with applicable regulations. There is no indication of procedural errors by the ADRB which would tend to have substantially jeopardized the applicant's rights.  

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