MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 22 August 2002
         DOCKET NUMBER: AR2002068226

         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
Ms. Lisa O. Guion		Analyst

The following members, a quorum, were present:

Ms. JoAnn H. Langston		Chairperson
Mr. Raymond V. O’Connor, Jr.		Member
Ms. Barbara J. Lutz		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: In effect, that his bad conduct discharge (BCD) be upgraded to an honorable discharge (HD).

APPLICANT STATES: In effect, that he was plagued with back pain throughout his military service that caused him a significant amount of stress, and he was ultimately found unfit for further service by a Medical Evaluation Board (MEB) based on this condition. In addition to the stress of physical pain, he worried about his family back at home, who at the time were suffering from severe emotional and financial hardship.

He indicates that prior to being drafted into the Army, he was the primary provider for his family who were sharecroppers. Shortly after he entered active duty, his younger sister was murdered and he was not granted leave to attend the funeral. Subsequent to his sister's murder, his mother died leaving his fourteen year old brother alone without an immediate family to support him. The brother was evicted from the house, the household furniture was repossessed, and the personal family possessions were taken. The combined tragic events, financial hardship, and chronic and severe back pain were all contributing factors to his choice to go absent without leave (AWOL) in order to help his family.

He further states, in effect, that subsequent to going AWOL, he realized this course of action was wrong. At that time, he contacted officials at Fort Bragg, North Carolina, to request financial assistance that would allow him to return to military control. It was his desire to clear his record and apply for a medical or hardship discharge. Instead of receiving financial assistance, he was apprehended by military law enforcement officers who returned him to Fort Bragg under their control. Upon his return, he was hospitalized for his back prior to being placed in the stockade.

In support of his application, the applicant provides character references from two church pastors and a friend. These letters all indicate that the applicant has been a good citizen, family man, and contributing member of his community for more than 25 years. In addition, they all confirm that he has continuously suffered from back problems that have impaired his ability to work and care for his family.

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

The applicant was inducted into the Army of the United States for 2 years on
28 February 1966. On 25 June 1966, he completed basic training and was assigned to Redstone Arsenal, Alabama, to attend advanced individual training (AIT).

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On 9 July 1966, prior to reporting to AIT, the applicant went AWOL. He remained away for 37 days until returning to military control on 15 August 1966. After 5 days back in military control, the applicant again went AWOL on 20 August 1966. On 22 August 1966, he was dropped from the rolls (DFR) of his organization. After remaining away for 380 days, he returned to military control at Fort Bragg on 6 September 1967. At that time he was placed in pre-trial confinement.

On 5 January 1968, the applicant plead and was found guilty of two specifications of AWOL, totaling 417 days, by a general court-martial. He was sentenced to confinement at hard labor for 1 year, forfeiture of all pay and allowances, and a BCD.

On file in the applicant’s Military Personnel Records Jacket (MPRJ) was a record of the review of the applicant’s court-martial conducted by the Staff Judge Advocate (SJA), Fort Bragg. This review outlined the applicant’s testimony in regard to mitigating factors for his AWOL related misconduct. This testimony indicated, in effect, that the extensive hardship being experienced by his family and his desire to care for them was the primary factor for his going AWOL. He also testified that his severe back problems impacted his ability to serve and also contributed to his going AWOL. The SJA confirmed that medical evidence had been introduced at the applicant’s trial that verified that between his first and second period of AWOL, the applicant had been found medically unfit for further service based on his back condition that existed prior to entry into military service by a Medical Evaluation Board (MEB). The SJA review further verifies that the applicant voluntarily returned to military control at the end of his AWOL.

Following the Staff Judge Advocate’s advice that the applicant should be granted clemency, the convening authority approved only so much of the sentence as provided for six months confinement at hard labor, forfeiture of all pay and allowances, and a BCD.

On 27 June 1968, the Board of Review, United States Army Judiciary, examined the applicant’s record of trial and found it to be sufficient to support the findings of guilty and the resultant sentence. Accordingly, on 10 July 1968 the applicant was separated after completing 6 months and 1 day of creditable military service and having accrued a total of 681 days of lost time due to AWOL and confinement.

Title 10 of the United States Code, section 1552 as amended does not permit any redress by the Army Board of Correction of Military Records (ABCMR) of the finality of a court-martial conviction and empowers the ABCMR to only change a discharge if clemency is determined to be 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 Board notes the applicant’s contentions that the hardship of his family and his medical problems were contributing factors to his AWOL related misconduct, and his post service conduct has been excellent. However, while these factors appear to be true, in the opinion of the Board, given the applicant’s undistinguished record and limited period of service, they do not provide sufficient mitigation to warrant clemency.

2. By law, any redress by this Board of the finality of a court-martial conviction is prohibited. The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the punishment imposed. However, in this case, the Board finds the evidence of record confirms that the applicant’s conviction and discharge were effected in accordance with applicable law and regulations.

3. Notwithstanding the applicant’s contentions and desires, the Board finds that the type of discharge received by the applicant appropriately characterizes the misconduct for which he was convicted and accurately reflects his record of service. Therefore, the Board concludes that clemency is not warranted in this case.

4. 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.

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:

__JHL __ __ RVO _ __BJL __ GRANT

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION

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

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INDEX

CASE ID	AR2002068226
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/08/22
TYPE OF DISCHARGE	BCD
DATE OF DISCHARGE	19680710
DISCHARGE AUTHORITY	AR635-204
DISCHARGE REASON	SPN 292
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	144.000
2.
3.
4.
5.
6.