MEMORANDUM OF CONSIDERATION
IN THE CASE OF:
BOARD DATE: 4 March 1998
DOCKET NUMBER: AC97-09940
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 bad conduct discharge be upgraded to a general/under honorable conditions discharge.
APPLICANT STATES: In effect, that he was young at the time of his offense and was experiencing personal problems he was not able to deal with; and that he would like to make amends by enlisting in the Reserves so that he can clear his record.
EVIDENCE OF RECORD: The applicant's military records show:
On 6 June 1966 the applicant was inducted into the Army of the United States for a period of 2 years at age 18. He successfully completed basic training at Fort Polk, Louisiana and advanced individual training (AIT) at Fort Ord, California. Upon completion of AIT he was awarded military occupation specialty (MOS) 95B (Military Policeman) and assigned to an overseas tour of duty in Korea.
The applicantÂ’s record is void of information on any specific acts of achievement, valor or service warranting special recognition or commendation. However, there is documented evidence of a record of disciplinary infractions.
On 6 May 1967 the applicant went AWOL from an emergency leave status and remained gone until he was apprehended and returned to military control on 15 July 1969.
On 12 September 1969 the applicant was tried by general court-martial for violation of Article 85 (Desertion) for the period indicated in the proceeding paragraph. He was found guilty of the charge and specification and was sentenced to: be dishonorably discharged from the service; reduced to the rank of private/E-1; to forfeit all pay and allowances; and to be confined at hard labor for a period of two (2) years.
The court-martial was promulgated and the sentence approved in General Court-Martial Order Number 72, Headquarters, 5th Infantry Division (Mechanized) and Fort Carson, Fort Carson, Colorado 80913, dated 28 November 1969 which ordered the applicant be confined in the US Disciplinary Barracks at Fort Leavenworth, Kansas pending completion of the appellate review.
General Court Martial Order Number 960, Headquarters, Fort Leavenworth, Kansas dated 9 October 1970 affirmed, the court martial with the following modification: so much of the sentence as provides for dishonorable discharge is changed to bad conduct discharge, by order of the Secretary of the Army dated 20 May 1970; and directed the modified sentence be duly executed.
Accordingly, on 20 October 1970 the applicant was issued a bad conduct discharge after completing 11 months and 4 days of active military service and accruing 397 days of time lost prior to his normal expiration of term of service (ETS) and 864 days of time lost subsequent to his normal ETS due to AWOL and confinement.
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. Trial by court-martial was warranted based on the gravity of the offense with which the applicant was charged. Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.
2. The Board takes cognizance of the applicant's desire to clear his record, to honorably serve his country in the Reserves, to make amends for his earlier misconduct, and his age and personal problems at the time of his discharge. However, the Board found none of these factors, either individually or in sum, sufficiently mitigating to warrant the relief requested.
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
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