MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 5 March 2002
         DOCKET NUMBER: AR2001061434

         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. Carolyn G. Wade		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Thomas B. Redfern III		Member
Mr. Donald P. Hupman, Jr.		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 bad conduct discharge (BCD) be upgraded to honorable.

APPLICANT STATES: That his father was seriously ill and without income; that during advanced individual training (AIT), he applied for a hardship discharge; that as his request for discharge was being processed, he was removed from his AIT cycle at the halfway point causing him to miss important training; that there was a turnover in his company chain of command and his separation processing was stopped; and that, without ever receiving the appropriate AIT training, he was ordered to Vietnam. The applicant states that he went home, got a job, put his parents back on a better economic footing, then he returned to the Army.

In support of his application, the applicant submitted a letter in his own behalf and old letters from family friends and his pastor attesting to his father’s illness. He also submitted a copy of his DD Form 214, Armed Forces of the United States Report of Transfer or Discharge, and documents related to his court-martial.

EVIDENCE OF RECORD: The applicant's military records were not available. Information herein was obtained from the applicant's DD Form 214 and court-martial records.

The applicant was inducted into the Army of the United States for 2 years on 27 March 1968. Following completion of basic combat training, he was sent to Fort Polk, Louisiana for AIT in military occupational specialty (MOS) 11B10 (Light Weapons Infantryman).

During his AIT, the applicant submitted a request for a hardship discharge based upon his father’s medical condition and his parent’s financial condition. He provided documents from acquaintances and clergy attesting to his parent’s dire straits and the need for the applicant to come home. Approval was expected and the applicant was removed from the last three weeks of training by the company first sergeant. However, there was a change in first sergeants and progress on the request was stopped. The applicant was assigned to the United States Army Personnel Center, Oakland Army Terminal, Oakland, California.

The applicant was granted 30 days’ leave prior to reporting to the United States Army Personnel Center, Oakland Army Terminal, Oakland, California. When the 30 days’ leave was over the applicant did not report to the United States Army Personnel Center, Oakland, California. The applicant went AWOL (absent without leave) and remained absent from 30 August 1968 to 12 February 1970.

On 14 April 1970, the applicant was found guilty by a general court-martial of being AWOL for 531 days. He was sentenced to forfeiture of $25.00 pay per month for 6 months, confinement at hard labor for 6 months, reduction to the lowest grade, and a BCD. On the same date, the applicant was confined by military authorities.

On 5 May 1970, the military judge submitted a letter recommending that the BCD be suspended. He cited the applicant had not required pretrial confinement to assure his presence at trial and that the applicant desired to return to duty.

On an unknown date, the appellate review was completed, the sentence was affirmed, and the BCD was ordered executed.

On 11 September 1970, the applicant was discharged under the provisions of chapter 11, Army Regulation 635-200, with a BCD. He was discharged after completing 8 months and 6 days of active military service and accruing 682 days of lost time for AWOL and confinement. His DD Form 214 incorrectly reflects only 652 days of lost time.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 3, paragraph 3-11, provides that a soldier will be given a BCD pursuant only to an approved sentence to a general court-martial or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed.

Court-martial convictions stand as adjudged or modified by appeal through the judiciary process. In accordance with Title 10, United States Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.

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 requested a hardship discharge and was removed from training prior to completing it; however, the hardship discharge was never approved. After pursuing the hardship discharge on the way to his next duty station, with no results, the applicant decided to go AWOL and remained absent for 531 days.

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The Board determined that, although the applicant went AWOL to care for his family, this incident of misconduct adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline. The applicant’s misconduct clearly diminished the quality of his service below that meriting a general or fully honorable discharge.

3. Trial by court-martial was warranted by the gravity of the offense 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.

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

__FNE__ ___DPH _ ___TBR__ DENY APPLICATION

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

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INDEX

CASE ID	AR2001061434
SUFFIX
RECON
DATE BOARDED	20020305
TYPE OF DISCHARGE	BCD
DATE OF DISCHARGE	19701109
DISCHARGE AUTHORITY	AR 635-200, c11
DISCHARGE REASON	Other than desertion (court-martial)
BOARD DECISION	DENY
REVIEW AUTHORITY	Director
ISSUES 1.	144.9405
2.
3.
4.
5.
6.