MEMORANDUM OF CONSIDERATION


         IN THE CASE OF
        

         BOARD DATE: 28 August 2003
         DOCKET NUMBER: AR2003088370

         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. Yvonne J. Foskey .		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Thomas Lanyi		Member
Mr. Harry B. Oberg		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 undesirable discharge (UD) discharge be upgraded to a general, under honorable conditions discharge (GD).

APPLICANT STATES: In effect, that his UD was based on his being absent without leave (AWOL). He claims that the reason he went AWOL was that he was the sole support for his mother at the time. He states that he applied for a hardship discharge based on this situation, but the Army denied the request. As a result, he elected not to return from leave and to remain home to provide support for his family. In support of his application, he provides a letter from his sister that attests to the fact that he was the sole support for the family while he was in the Army.

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

On 8 January 1968, he was inducted into the Army and entered active duty. He successfully completed basic training at Fort Leonard Wood, Missouri, and was assigned to Fort Polk, Louisiana, to attend advanced individual training (AIT) in military occupational specialty (MOS) 11H (Infantry Direct Fire Crewman).

The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition. However, it does reveal an extensive disciplinary history that began while he was attending AIT. The record also confirms that the highest rank he attained while serving on active duty was private/E-2 (PV2).

On 11 February 1968, while he was still attending AIT, the applicant departed his unit AWOL. He remained away for 3 days until returning to military control on
13 February 1968.

On 9 March 1968, he again departed his AIT unit AWOL. He remained away for 5 days until returning to military control on 13 March 1968. On 18 March 1968, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for this AWOL. On
13 May 1968, the applicant accepted a second NJP for failing to obey a lawful order.

On 31 May 1968, the applicant successfully completed AIT and was awarded MOS 11H. At this time he received orders directing him to report to Oakland, California, for further movement to the Republic of Vietnam (RVN).

On 21 June 1968, upon his failure to report to Oakland, the applicant was placed in an AWOL status. He remained away for 189 days until returning to military control at Fort Leonard Wood, Missouri on 26 December 1968.
On 18 March 1969, the applicant was convicted by a special court-martial of being AWOL from on or about 21 June 1968 to on or about 27 December 1968. The resultant sentence included a forfeiture of $73.00 per month for six months and confinement at hard labor for six months.

On 2 December 1969, the applicant was notified by his unit commander that action was being initiated to separate him under the provisions of Army Regulation 635-212, for unfitness.

The applicant consulted with legal counsel, and after being advised of the basis of the contemplated separation action and the effects of an UD, he completed his election of rights. He elected to waive consideration of his case by a board of officers and representation by counsel. He also elected not to submit a statement of rebuttal in his own behalf.

On 5 March 1970, the separation authority approved the applicant’s discharge and directed that he receive an UD. On 18 March 1970, the applicant was discharged accordingly. The DD Form 214 issued to the applicant on the date of his separation confirms that he completed a total of 6 months and 24 days of creditable active military service, and that he accrued a total of 596 days of lost time due to AWOL and confinement.

On 10 May 1985, the Army Discharge Review Board (ADRB) reviewed the applicant’s case and determined that the characterization and reason for the applicant’s discharge were both proper and equitable, and it voted to deny his request for an upgrade to his discharge.

Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Paragraph 6a (1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness. An undesirable discharge was normally considered 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 reason for his AWOL related misconduct was that he was the sole support for his mother at the time and the Army had denied him a hardship discharge. However, the Board does not find this factor is sufficiently mitigating to warrant the requested relief.

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2. The evidence of record confirms that the applicant’s separation processing was accomplished in accordance with the law and regulations applicable at the time. Further, the character of the discharge is commensurate with the applicant's overall undistinguished record of military service.

3. The Board also notes that the applicant was notified of the contemplated separation action by his unit commander, consulted legal counsel, and was advised of the basis for the contemplated separation action and of its possible effects. In addition, subsequent to this counseling, he elected to waive his right to have his case considered by a board of officers.

4. Lacking evidence to the contrary, the Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Therefore, the Board concludes that an upgrade to his discharge is not warranted at this time.

5. 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.

6. 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

__HBO___ __TL__ __AO_ DENY APPLICATION

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

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INDEX

CASE ID	AR
SUFFIX
RECON
DATE BOARDED
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
DISCHARGE AUTHORITY	AR .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.