MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 19 July 2001
         DOCKET NUMBER: AR2001058089

         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
Mrs. Nancy Amos		Analyst

The following members, a quorum, were present:

Mr. Mark D. Manning		Chairperson
Mr. Lester Echols		Member
Ms. Gail J. Wire		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)

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APPLICANT REQUESTS: That his discharge under other than honorable conditions (UOTHC) be upgraded to honorable.

APPLICANT STATES: That he was discharged for being absent without leave (AWOL) but he was eligible to be gone because his father was in an accident and the Red Cross had approved his leave. His unit did not allow him to go on pass because of prejudice. Then he had other family problems and again his unit would not allow him to depart although others, Caucasians, were allowed to leave. He was harassed, which caused stress and mental damage. He was never allowed witnesses to be called at his court-martial. He provides a letter of support from his father, who states he was in an accident in 1970. He provides another letter from his brother, who recalls hearing his family talking about how badly the applicant was being treated while he was in the Army.

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

He enlisted in the Regular Army on 13 March 1970.

The applicant departed AWOL from 27 April – 2 May 1970. He departed AWOL again from 1 June – 3 July 1970. He departed AWOL 13 July 1970, was in civil confinement from 28 August – 13 October 1970, and returned to military control on 14 October 1970.

On 26 October 1970, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for failing to go to his appointed place of duty.

On 27 October 1970, the applicant completed a psychiatric evaluation. No disqualifying mental or physical defects sufficient to warrant disposition via medical channels were found. He was found to have a severe character and behavior disorder with no violent tendencies but believed not to be amenable to further rehabilitative efforts or to have the potential to become an effective soldier. He was found to be responsible, able to distinguish right from wrong and adhere to the right, and to have the mental capacity to understand and participate in board proceedings.

On 12 November 1970, the company commander initiated separation action under Army Regulation 635-212 for unfitness. The applicant was advised by counsel of the basis for the contemplated separation action. He waived consideration of his case by a board of officers; waived personal appearance before such a board; elected not to make a statement on his own behalf; and waived representation by counsel.

On 14 November 1970, the applicant was formally recommended for separation. The company commander noted the applicant was assigned to the unit on 17 May 1970 and he immediately became abusive and belligerent to any and all forms of authority. He went AWOL almost immediately, returned once and departed again shortly after. During his AWOL he had compiled a lengthy record of civil offenses such as burglary, disorderly conduct, resisting arrest, possession of stolen property, and carnal knowledge (contributing to the sexual delinquency of a minor). At the time of his arrest he had been found in bed with a 16-year old girl for which offense he was found guilty and placed under court supervision for 6 months. He had also been charged with burglary and resisting arrest, found guilty and placed on 3 years probation. He was a detriment to good order and discipline and would continue to be a constant problem to the unit and the Army.

On 19 November 1970, the applicant completed a separation physical and was found qualified for separation.

On 18 December 1970, the appropriate authority approved the recommendation and directed issuance of an undesirable, UOTHC discharge.

The applicant departed AWOL 3 – 10 January 1971.

On 11 January 1971, the applicant was discharged in absentia, with a discharge UOTHC, in pay grade E-1, under the provisions of Army Regulation 635-212 for unfitness. He had completed 5 months and 10 days of creditable active service and had 141 days of lost time.

Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel. The regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana, an established pattern for shirking, an established pattern showing dishonorable failure to pay just debts or failure to contribute adequate support to dependents, were subject to separation for unfitness. Such action would be taken when it was clearly established that despite attempts to rehabilitate or develop him as a satisfactory soldier further effort was unlikely to succeed.

Army Regulation 630-5 prescribes policies and procedures governing various types of authorized absences. In pertinent part, it states that the objective of a Red Cross report regarding an emergency situation is to assist the commander in determining the need for a member to return home on leave.

On 17 July 1981, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgraded discharge.

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. 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.

2. The applicant was discharged pursuant to administrative procedures, not by court-martial. His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights. The Board notes he waived his right to a board hearing and elected not to submit a statement in his own behalf.

3. The applicant provides no details as to when his father’s accident was or how serious it was. He does not provide the Red Cross’s verification of the accident. In any case, Red Cross verification does not guarantee approval of emergency leave; that is the commander’s decision.

4. Considering the applicant’s record of AWOL and his civil convictions for offenses committed while he was AWOL, the characterization of his discharge as under other than honorable conditions was and still is appropriate.

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

__mdm___ __le____ __gjw___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001058089
SUFFIX
RECON
DATE BOARDED	20010719
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	19710111
DISCHARGE AUTHORITY	AR 635-212
DISCHARGE REASON	A51.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	110.00
2.
3.
4.
5.
6.