RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        6 July 2006
      DOCKET NUMBER:  AR20050015135


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Joyce A. Wright               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Eric N. Andersen              |     |Chairperson          |
|     |Mr. Michael J. Flynn              |     |Member               |
|     |Mr. Dennis J. Phillips            |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his bad conduct discharge
(BCD), characterized as under other than honorable conditions (UOTHC), be
upgraded to honorable.

2.  The applicant states that he felt that his service was honorable and
that his discharge should state honorable.

3.  The applicant also submits a personal statement.  He states that he
called his mother and found out that this ex-wife had taken his son and
disappeared.  He is an only child and he had no one to turn to.  His father
was very ill at the time and his mother was upset and scared for his son.
She was taking care of his father 24-7 and could not look for his son.  The
applicant states he was very young and not thinking straight.  He felt that
he had to go to California to find his son.  He searched but could not find
him.  However, he found out that his ex-wife had left the state.

4.  The applicant states he does not remember the exact amount of days that
passed before he turned himself in at Fort Huachuca, Arizona.  His
intention was to finish his enlistment and continue looking for his son but
he was placed in the stockade.  He was not given clearance to fully explain
his actions.  The decision to discharge him did not allow him to complete
his enlistment.  In the time of his separation from his son, he grew up
with a lot of emotional problems.  He did not find his son for several
years.

5.  The applicant states his ex-wife was killed in a car accident and only
then was he able to get his son back.  He did not know he could appeal his
discharge until recently which is the reason why he is doing it now.  Due
to his health, he is not able to travel to Washington, DC to appear in
person for a hearing.  He has been diagnosed with diabetes which is not
under control and is also on Social Security Disability.  He states that
for so many years he did not have the money for travel expenses.  So, he is
asking your consideration in upgrading his discharge to honorable.

6.  The applicant provides a copy of a criminal background check, a copy of
his work history, a disability decision from the Social Security
Administration, and a copy of a letter of recommendation, in support of his
request.




CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 12 August 1963, the date of his discharge.  The application
submitted in this case is dated 29 September 2005 but was received for
processing on 17 October 2005.

2.  The applicant's military records show he entered active duty (AD) on
28 April 1961, as a light weapons infantryman (11B).  He was promoted to
private first class (PFC/E-3) on 5 December 1962.

3.  At a special court-martial on 11 February 1963, while assigned to Fort
Bragg, North Carolina, the applicant pled guilty to two specifications of
being absent without leave (AWOL) from 2 to 24 November 1962 and from 8 to
24 December 1962.  His sentence consisted of a forfeiture of $55.00 pay per
month for 6 months and confinement at hard labor for 6 months.  On
12 February 1963, the convening authority approved only so much of the
sentence as provided for a forfeiture of $55.00 pay per month, and
suspended the 45 days confinement with provisions for automatic remission.
On 22 April 1963, the convening authority vacated the suspension and
ordered the confinement executed because the applicant was AWOL from
25 February to 4 April 1963.

4.  At a general court-martial on 21 May 1963, while assigned to Fort
Bragg, the applicant pled guilty to being AWOL from 25 February to 4 April
1963.  His sentence consisted of confinement at hard labor for 3 months,
forfeiture of all pay and allowances, and a BCD.  The sentence was approved
on 9 Jul 1963 and the record of trial was forwarded to The Judge Advocate
General (TJAG) of the Army for review by a Board of Review.

5.  On 26 July 1963, the Board of Review, United States Army, affirmed the
findings and sentence.  On 30 July 1963, the applicant waived his right to
appeal to the United Court of Military Appeals.

6.  The applicant underwent a separation medical examination on 1 August
1963. He was found to be in good health and was qualified for separation.

7.  On 12 August 1963, the applicant was discharged from the Army pursuant
to the sentence of a general court-martial and was issued a BCD.  He had
completed 1 year, 7 months, and 24 days of creditable service and had
246 days of lost time due to being AWOL and confinement. 

8.  The applicant provides a copy of his criminal record search, dated
5 September 2005, from the state of North Carolina, Cleveland County, in
the General Court of Justice.  It shows that the clerk of superior court
conducted a search of the official records of the criminal cases in the
courts of the county and found that no record was indexed by the
applicant's name.  This form contained a notarized seal.

9.  The applicant provides a self-authored work history.  In his work
history dated 29 September 2005, the applicant states after his discharge,
he returned to California and completed his electrical apprentice.  He
worked through the IBEW (International Brotherhood of Electrical Workers)
in Local Union #11, District 2, until he became disabled on 7 August 1987.
Since then, he has been disabled and has enclosed documents to the effect.
As of March 2005, he has been diagnosed with diabetes along with a
degenerative back disease.

10.  The applicant provides one character reference letter, dated
29 September 2005.  The letter states that the acquaintance has known the
applicant for more than 10 years.  In that time, she found the applicant to
be a very honest and trustworthy and has never heard or seen a dishonest
thing that he has done.  She is proud to know the applicant and proud to
call him her friend.

11.  The applicant’s case is ineligible for review  by  the  Army  Discharge
Review Board (ADRB) due to his conviction by a general court-martial.

12.  Army Regulation 635-204, in effect, at the time, set forth the basic
authority for the separation of enlisted personnel.  Paragraph 1(b) of the
regulation provided, in pertinent part, that an enlisted person would be
given a bad conduct discharge pursuant only to an approved sentence of a
general or special court-martial.  The appellate review must be completed
and the affirmed sentences ordered duty executed.

13.  Army Regulation 635-200, paragraph 3-7, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a Soldier whose military record is satisfactory
but not sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for the Soldier's separation specifically allows such
characterization.




14.  Army Regulation 635-200, paragraph 3-7, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  The honorable characterization is appropriate when the
quality of the member's service generally has met the standards of
acceptable conduct and performance of duty for Army personnel, or is
otherwise so meritorious that any other characterization would be clearly
inappropriate.  Whenever there is doubt, it is to be resolved in favor of
the individual.

DISCUSSION AND CONCLUSIONS:

1.  Trial by court-martial was warranted by the gravity of the offenses
charged.
Conviction and discharge were effected in accordance with applicable law
and regulation.

2.  The evidence of record shows that the applicant was convicted by a
special court-martial and a general court-martial for AWOL.  He was
discharged pursuant to the sentence of a general court-martial and was
issued a BCD.

3.  The applicant described personal and family emergencies that he was
encountering prior to and after being AWOL.  It is apparent that the
applicant should have informed his commander of his situation prior to
departing AWOL.  His commander may have provided him with some support and
assistance that may have prevented him from going AWOL.  The applicant
chose to depart in an AWOL status on three occasions, which were
unauthorized absences, to attend to family emergencies and he remained AWOL
for lengthy periods of time.  The applicant could have availed himself to
agencies that would have provided the necessary assistance to address his
problems; however, he resorted to leaving his unit in an AWOL status which
compounded his problems.

4.  The applicant contends that he was unaware that he could appeal his
discharge until recently and is unable to attend a personal hearing due to
his health.  His contentions were considered; however, the evidence of
record shows that the applicant accumulated a total of 246 days of lost
time due to AWOL and confinement.  An absence of this duration is serious
and there is insufficient evidence to show that the applicant now deserves
an upgrade of his discharge.

5.  The applicant's work history was noted and his character reference
letter which attests to his honesty and trustworthiness were considered;
however, they are not sufficiently mitigating to warrant an upgrade of his
discharge.



6.  In order to justify correction of a military record, the applicant must
show, to the satisfaction of the Board, or it must otherwise appear, that
the record is in error or unjust.  The applicant has failed to submit
evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__MJF __  __ena___  __DJP___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented does not demonstrate the
existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.




                                  ____Eric N. Andersen______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050015135                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060706                                |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |19630812                                |
|DISCHARGE AUTHORITY     |AR 635-204  BCD                         |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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