MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           7 August 2003                  
	DOCKET NUMBER:   AR2002083075

	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:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Thomas B. Redfern		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:  In effect, that he was young and immature at the time of his discharge.  He was found not guilty of the civilian offence.  He states that his mother passed away and he was AWOL (absent without leave) for about 32 days.  He avers that he is homeless and he needs the upgrade to be able to obtain Department of Veterans Affairs (VA) medical care.

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

The applicant entered active duty on 18 July 1966 at the age 19.  He completed basic combat training and advanced individual training with award of the military occupational specialty (MOS) 76A (Supply Clerk). 

The applicant was reported absent without leave (AWOL) on 16 October 1966 and was apprehended by civilian authorities on 26 October 1966.  The applicant appears to have remained in civilian custody until 10 November 1966.

The applicant was placed in military confinement upon his return and remained in confinement until 5 December 1966, when a Special Court-Martial found him guilty on two counts of AWOL and one of disobeying a lawful order.  The applicant’s sentence included 4 months confinement.  

The confinement was remitted to time served on 13 February 1967, at which time the applicant was returned to civilian control pending action on his civilian trial.  It appears that the applicant was granted regular leave for the period 17 February 1967 through 1 March 1967.

The applicant was again reported AWOL from 2 March 1967 through 13 March 1967.  

On 15 March 1967, the remainder of his suspended sentence was vacated and he was again placed in confinement.

On 7 July 1967, a second Special Court-Martial found him guilty of being AWOL and breaking restriction. 

The applicant went AWOL again, from 13 April through 16 April 1967 and upon his return was again placed in confinement.

The applicant was again turned over to civilian authorities for the period 17 April 1967 through 13 June 1967.

Although the details of the periods of civilian incarceration and trial are not of record, a DA Form 268 (Report for Suspension of Favorable Personnel Actions, dated 15 June 1967, states that the applicant was found not guilty of the charge of auto theft and returned to military control.

The applicant was AWOL for a fifth time from 18 June 1967 through 27 June 1967, at which time he was again placed in pretrial confinement.  

On 7 July 1967 a Special Court-Martial again found the applicant guilty of AWOL and sentenced him to 6 months confinement.  

On 10 July 1967, the applicant was notified that he was being considered for elimination under the provisions of Army Regulation 635-212.

Although the discharge packet is not of record, it is noted that the applicant was discharged under other than honorable condition on 28 August 1967.  He is shown to have had 5 months and 16 days of creditable service with 7 months and 26 days lost due to AWOL and/or confinement.

Army Regulation 635-212, then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability.  It provided, in pertinent part, for discharge due to unsuitability because of apathy of those individuals who displayed a lack of appropriate interest and/or an inability to expend effort constructively.  When separation for unsuitability was warranted an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.

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.  The Board notes the applicant’s reported family problems and his current homelessness and need for medical care; however, these factors do not outweigh the repeated offences that resulted in his discharge especially in light of the fact that his military record is devoid of significant service.

2.  The regulations governing the Board’s operation require that the discharge process must be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption.  This Board is not an investigative body and the burden of proof that an error or injustice occurred rests with the applicant.

3.  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 20 years of age and had satisfactory completed training before any negative incidents are documented.  This satisfactory performance demonstrates his capacity to serve and shows that he was neither too young nor immature.
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 this 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

__AAO__  __TBR___  __MMB_  DENY APPLICATION

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

INDEX

CASE ID	AR2002083075	
SUFFIX		
RECON		
DATE BOARDED	20030807	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	Upgrade AWOL	
2.		
3.		
4.		
5.		
6.