MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 2 October 2003
         DOCKET NUMBER: AR2003086525


         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. Antoinette Farley		Analyst

The following members, a quorum, were present:

Ms. Kathleen A. Newman		Chairperson
Mr. Lester Echols		Member
Mr. John T. Meixell		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 the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

         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 be upgraded.

APPLICANT STATES: In effect, he, regrettably, made several errors in his judgment due to the emotional problems that arose from having to make choices between his family and his career. When a child entrusted in his care ran away from his residence, he was unable to return to duty from an ordinary leave status. He elected to find the child, which caused him to be absent without leave (AWOL) from his unit. The circumstances of the offense did not matter to his commanding officer (CO) and he was reduced in grade. He admits he then reacted out of hurt and anger, but does not provide any specific details. He adds that his record does not reflect his collaboration with the military police investigators at Fort Carson, Colorado, which in turn resulted in his immediate transfer to Fort Riley, Kansas due to a death threat. His record was delayed, which resulted in numerous pay problems. This ruined his credit and caused him psychological problems. His new car was repossessed. He contends he completed his sentence due to his lost time. He claims that he was placed in an excess leave status 30 days prior to his separation, but because of a clerical error it was recorded as lost time in his records. He submits a written statement, briefly covering his military service and his concerns about his alleged lost leave. He states that he was not recognized for his efforts, nor was the impact to him noted. He still feels the frustration and pain some 27 years later. This has been the biggest failure of his life. He has still not fully recovered and relives the events even now. He still carries the burden of guilt and shame for his actions and prays daily for forgiveness.

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

On 8 June 1972, he was discharged in pay grade E-5 to reenlist. His DD Form 214 (Report of Separation) shows that he was awarded military occupational specialty (MOS) 52D20 (Gas Turbine & General Repairman). He was credited with 2 years, 6 months and 26 days of active duty and 1 year, 6 months and
14 days in Germany. He was also awarded the National Defense Service Medal.
On 9 June 1972, he reenlisted for 3 years in MOS 52D20. On 27 July 1972, he returned to the United States from Germany and was assigned to Fort Carson, Colorado.

On 11 September 1982, the applicant accepted non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from 18 to 28 August 1972. His punishment included reduction to pay grade E-4, forfeiture of $100.00 pay per month for 2 months and extra duty and restriction for 20 days. The applicant’s appeal was denied.



On 17 November 1972, he received his second NJP for being AWOL from
10 to 17 November 1972. His punishment included forfeiture of $50.00 pay per month for 1 month, reduction to pay grade E-3 and extra duty for 7 days.

On 15 May 1974, the applicant received his third NJP for being AWOL from 6 to 13 May 1974. His punishment included reduction to pay grade E-1, suspended for 30 days.

On 16 September 1974, he was convicted by a special court-martial of being AWOL from his place of duty on 18, 20, 23 and 28 June 1974, from 1 to 15 July and from 15 to 22 July 1974. The applicant was sentenced to confinement at hard labor for 2 months, forfeiture of $50.00 pay for 2 months, and reduction to pay grade E-1.

On 18 March 1975, the applicant received his fourth NJP for being AWOL
from 15 January to 18 February 1975. His punishment included forfeiture of $172.00 pay per month for one month.

On 30 April 1975, DA Form 4187 (Personnel Action) shows the applicant’s duty status, changed from present for duty to AWOL, effective at 0730 hours, on
28 April 1975.

The record does not contain all of the facts and circumstances surrounding the discharge process. On 29 May 1975, he was issued an Undesirable Discharge Certificate. He had 2 years, 6 months and 24 days of creditable service and
147 days of lost time. The highest pay grade he held was E-5.

The applicant’s DA Form 2-1, Item 28 (Miscellaneous/Item Continuation) shows additional entries for his periods of lost time. The last entry shows that he was listed in an AWOL status from 28 April - 29 May 1975.

Additionally, on 20 May 1975, Headquarters, 4th Infantry Division (Mechanized) Fort Carson, Colorado, Special Orders Number 140, directed the reassignment of the applicant’s separation processing to the U.S. Army Garrison, Fort Carson, Colorado. It also shows that the applicant’s leave data entry as none and further instructed that he be discharged from an absentee status.

On 3 June 1975, Headquarters, 4th Infantry Division Fort Carson, Colorado, issued Special Orders Number 154 (Extract) shows that the applicant was separated with an undesirable discharge on 29 May 1975.

Army Regulation 635-200 sets forth the policy and prescribes the procedures for administrative separation of enlisted personnel. Chapter 13, in effect, at
that time applied to separation for unfitness and unsuitability.

Paragraph 13-5(a) 1, provided for the separation for unfitness, which included frequent incidents of a discreditable nature. When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.
There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within the 15-year statute of limitations.

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 the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with his overall record.

2. The Board notes the applicant’s contention that he was sent home in excess leave status from 28 April to 29 May 1975, to await separation. However, the record correctly shows he was listed as being AWOL for that same time period by his command on 30 April 1975. Therefore, there is no justification to change his leave records.

3. While the Board notes the applicant’s claims that he was AWOL because of personal and pay problems, none of these factors, either individually or in sum, outweighs the misconduct that led to the discharge. He had many legitimate avenues of dealing with these problems without continuously going AWOL.

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:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

KAN __LE ___JTM__ DENY APPLICATION

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

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INDEX

CASE ID	AR2003086525
SUFFIX
RECON
DATE BOARDED	2003.10.02
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1975.05.29
DISCHARGE AUTHORITY	AR635-200, PARA Ch 13
DISCHARGE REASON	Frequent incidents of a discreditable nature
BOARD DECISION	DENY
REVIEW AUTHORITY	DIRECTOR
ISSUES 1.	A144.7900
2.	A92.23
3.	A92.33
4.
5.
6.