MEMORANDUM OF CONSIDERATION


	IN THE CASE OF:  
	                 

	BOARD DATE:                              
	DOCKET NUMBER:   AC

	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:




	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 general/under honorable conditions (GD).

APPLICANT STATES:  In effect, he doesn’t understand why being AWOL for just 21 days resulted in the type of discharge he received.  He also states that his AWOL was based on the loss of his grand parents who he was very close to.

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

On 22 June 1967 the applicant entered the Regular Army for a period of 3 years at age 19.  He successfully completed basic training at Fort Ord, California, and advanced individual training (AIT) at Fort Gordon, Georgia.  Upon completion of AIT he was awarded military occupational specialty (MOS) 36K (Field Wireman) and assigned to Germany for his first permanent duty station.

The applicant's record of service is average and void of any significant acts of achievement, valor, or service meriting special recognition.  His military awards include the National Defense Service Medal and the Armed Forces Expeditionary Medal and the highest rank he attained was private first class/E-3. However, there is an extensive record of disciplinary infractions which include: a general court-martial conviction; a special court-martial conviction; and acceptance of nonjudicial punishment (NJP), under the provisions of Article 15, UCMJ, on three separate occasions.  Additionally, the applicant had been in confinement on four separate occasions totaling 307 days.

On 28 December 1968 the applicant was tried by general court-martial for the following charges:  Charge 1, violation of Article 119 (i.e., by culpable negligence unlawfully kill another soldier); Charge II, violation of Article 92 (i.e., operate a military vehicle without a valid license); Charge III, violation of Article 134 (i.e., incapacitated by previous indulgence in intoxicating liquor); and an additional Charge of violation of Article 108 (i.e., damaging military property).  He was found guilty of Charge II and the additional charge, not guilty of Charge 1 as written but guilty of the substituted language as follows the words “by culpable negligence” were changed to “negligent manner” and the violation was changed from Article 119 to 134.  His sentence was confinement at hard labor for 1 year; forfeiture of all pay and allowances; and to be discharged from the service with a bad conduct discharge.  The sentence was later modified to return the applicant to active duty and adjust his forfeiture from all pay and allowances to $50.00 per month for 8 months.

On 2 September 1969 the applicant accepted an NJP for violation of Article 86 (i.e., absent from place of duty on 29 and 30 August 1969).  His punishment for this offense was 7 days of restriction and 14 days of extra duty.

On 17 September 1969 the applicant accepted an NJP for violation of Article 86 (i.e., absent from place of duty on 15 September 1969).  His punishment consisted of 14 days of extra duty and a reduction in rank to private/E-1.

On 11 March 1970 the applicant was tried by special court-martial for violation of Article 86 (i.e., AWOL for the period 25 January through 12 February 1970).  He was found guilty and sentenced to: forfeit $75.00 per month for 2 months; confinement at hard labor for 2 months; and reduction in rank to private/E-1.

The record does not contain the discharge packet on the applicant; however, it does contain a letter from the applicant’s unit commander, dated 13 April 1970, initiating separation action on the applicant, under the provisions of AR 635-212, for unfitness.  The commander gives his reasons for the recommendation as the applicant’s repeated commission of petty offenses and habitual shirking.  The commander also cites an extensive record of counseling with the applicant for unsatisfactory performance and lists the applicant’s record of courts-martial and NJP’s as further factors in his decision.

The record also has a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) authenticated by the applicant which indicates the applicant received a UD, under the provisions of AR 635-212 for unfitness, after completing 2 years, 1 month, and 7 days of active military service and accruing 307 days of time lost due to AWOL and confinement.

Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness.  A UD was normally considered appropriate.

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 record is void of specific facts and circumstances concerning events that led to a discharge from the Army.  However, the record contains a properly constituted DD Form 214 which was authenticated by the applicant and documents the reason and characterization of the discharge.  The Board presumed government regularity in preparation of the document.

2.  The Board found the evidence of record does not support the applicant’s contention that his discharge was based solely on a 21 day period of AWOL he experienced when he lost his grandparents.  However, there is a preponderance of evidence to suggest the reason for and the character of the discharge are commensurate with the applicant's overall record of military service.

3.  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.

4.  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




						Karl F. Schneider
						Acting Director