MEMORANDUM OF CONSIDERATION


	IN THE CASE OF: 

	BOARD DATE:            13 May 1998                  
	DOCKET NUMBER:    AC97-10634

	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 (BCD) be upgraded to a general/under honorable conditions discharge (GD).

APPLICANT STATES:  In effect, that he does not believe he had good legal counsel; that he did not fit in and could not adjust to military life; that he pursued help through his chain of command; that a chaplain told him that if he went AWOL enough times he would be discharged; and that he did not receive medical treatment for an injury suffered in basic training.

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

On 10 July 1968 the applicant was inducted into the Army of the United States for 2 years at the age of 19.  He successfully completed basic training at Fort Lewis, Washington and was assigned to attend advanced individual training at Fort Sill, Oklahoma.

The applicant’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 repeated AWOL related disciplinary infractions beginning while the applicant was still in training.

On 23 July 1970 the applicant was tried by general court-martial for six specifications of violation of Article 86 for being AWOL for the following periods: 7 October to 25 November 1968; 2 to 3 December 1968; 3 February to 13 June 1969; 18 July to 5 December 1969; 19 December 1969 to 10 January 1970; and 12 March to 7 April 1970.  He was found guilty of all charges and specifications and was sentenced to receive a dishonorable discharge (DD) from the service; to forfeit all pay and allowances; and to be confined at hard labor for 2 years.

The court-martial was promulgated and the sentence approved in General Court-Martial Order Number 201, Headquarters, United States Army Training Center, Infantry and Fort Lewis, Fort Lewis, Washington 98433, dated 18 September 1970; and the applicant was ordered to be confined in the US Disciplinary Barracks at Fort Leavenworth, Kansas pending completion of the appellate review.

General Court Martial Order Number 573, Headquarters, Fort Leavenworth, Kansas dated 6 May 1971 affirmed the court-martial modified the discharge from a DD to a BCD and ordered the modified sentence be duly executed.  On 
14 April 1971 the Office of the Judge Advocate General of the Army confirmed that the order accurately reflected the final action duly taken pursuant to appellate review.

On 7 May 1971 the applicant underwent a separation medical examination which cleared him for separation.  The applicant gave a negative response to the question “back trouble of any kind”, which was contained on the medical history form he completed as part of the examination.  Additionally, the separation physical examination contained a no summary of defects, and granted the applicant an “A” physical category and a physical profile of P-1, U-1, L-1, H-1, E-1, and S-1 which indicates he had no medical problems at the time.

Accordingly, on 7 May 1971 the applicant was issued a bad conduct discharge after completing 5 months, and 28 days of active military service and accruing 549 days of time lost 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.  The evidence of record and the independent evidence submitted by the applicant does not support his contentions that his legal counsel was inadequate or that his chain of command failed to respond to legitimate issues raised by the applicant; in addition, the evidence of record indicates the applicant was provided a separation physical examination, on which he listed no medical problems, that medically cleared him for discharge.  Trial by court-martial was warranted by the gravity of the offenses 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.  Title 10, United States Code, section 1552, as amended does not permit any redress by this Board which would disturb the finality of a court-martial conviction.

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




						Loren G. Harrell
						Director