RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        25 January 2008
      DOCKET NUMBER:  AR20070010727


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. David K. Hassenritter         |     |Chairperson          |
|     |Mr. James R. Hastie               |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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, an upgrade of his Bad Conduct
Discharge (BCD).

2.  The applicant states, in effect, that his was experiencing hardship due
to his mother's heart condition and this led to his going absent without
leave (AWOL), and based on this hardship, his discharge should be upgraded.
 He claims a colonel told him his discharge could be upgraded because of
the hardship he faced based on the death of his mother.

3.  The applicant provides the following documents in support of his
application:  Self-Authored Letter; Separation Document (DD Form 214); and
Mother's Death Certificate.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law also allows the
Army Board for Correction of Military Records (ABCMR) to excuse an
applicant’s failure to timely file within the 3-year statute of limitations
if the ABCMR determines it would be in the interest of justice to do so.
While it appears the applicant did not file within the time frame provided
in the statute of limitations, the ABCMR has elected to conduct a
substantive review of this case and, only to the extent relief, if any, is
granted, has determined it is in the interest of justice to excuse the
applicant’s failure to timely file.  In all other respects, there are
insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's record shows that he was inducted into the Army and
entered active duty on 23 September 1970.  He successfully completed basic
training at Fort Lewis, Washington, and remained there to attend advanced
individual training (AIT) in military occupational specialty (MOS) 11C
(Infantry Indirect Fire Crewman).  His record documents no acts of valor,
significant achievement, or service warranting special recognition.

3.  On 7 January 1971, while attending AIT, the applicant departed AWOL
from his unit.  He remained away for 29 days until returning to military
control on
5 February 1971.

4.  On 8 February 1971, the applicant accepted non-judicial punishment
(NJP) under the provisions of Article 15 of the Uniform Code of Military
Justice (UCMJ) for being AWOL from 7 January through 5 February 1971. His
punishment for this offense was a forfeiture of $25.00 and 29 days of
correctional custody.

5.  On 14 March 1971, the applicant again departed AWOL from his AIT unit.
He remained away for 805 days until returning to military control on 22
January 1973.

6.  On 26 January 1973, after consulting with legal counsel, the applicant
requested discharge for the good of the service under the provisions of
chapter 10, Army Regulation 635-200.  He included a statement with his
request in which he indicated that he had departed AWOL because his mother
had heart trouble and because of problems his wife was experiencing.

7.  On 9 February 1973, the appropriate authority denied the applicant's
request for discharge and indicated that to approve such a request would
not be in the best interest of insuring justice and preserving discipline
in the Army.

8.  On 1 March 1973, a General Court Martial (GCM) found the applicant
guilty, pursuant to his plea, of violating Article 86 of the UCMJ by being
AWOL from on or about 14 March 1971 through on or about 22 January 1973.
The resultant sentence imposed by the Military Judge was forfeiture of all
pay and allowances, reduction to private/E-1 (PV1), confinement at hard
labor for 4 months, and a BCD.

9.  Headquarters, 9th Infantry Division and Fort Lewis, Fort Lewis,
Washington,  GCM Orders Number 49, dated 12 April 1973, shows the GCM
convening authority approved the sentence imposed by the Military Judge.

10.  On 27 April 1973, the United States Army Court of Military Review
found the finding of guilty and sentence as approved by the proper
authority correct in law and fact; and having determined on the basis of
the entire record, that the findings of guilty and only so much of the
sentence as provided for a BCD, confinement at hard labor for 3 months,
forfeiture of all pay and allowances, and reduction to PV1, should be
approved, the same as thus modified was affirmed.

11.  On 4 May 1973, GCM Orders Number 54, issued by Headquarters,
9th Infantry Division and Fort Lewis, Fort Lewis, Washington, directed, the
provisions of Article 71(c) of the UCMJ having been complied with, that the
sentence as modified be duly executed.  On 7 May 1973, the applicant was
discharged accordingly.
12.  The DD Form 214 issued to the applicant at the time of his discharge
on
7 May 1973, shows that he completed a total of 4 months and 10 days of
creditable active military service and that he accrued 825 days of time
lost due to AWOL and confinement.

13.  The applicant provides a copy of his mother's death certificate, which
shows she died on 5 September 1971.  He also provides a statement, in which
he indicates that he went AWOL because of his mother's heart condition.  It
also indicates that after he turned himself in, a colonel asked if he would
cut hair for the Soldiers since he was a licensed barber, and he agreed to
do so.  He further states the colonel testified for him at his court-
martial and believed that his discharge should be upgraded due to the
hardship he was suffering.

14.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 11, in effect at the time,
provided for separating members with a dishonorable or bad conduct
discharge.  It stipulated, in pertinent part, that a Soldier would be given
a BCD pursuant only to an approved sentence of a general or special court-
martial, and that the appellate review must be completed and affirmed
before the sentence is ordered duly executed.

15.  Title 10 of the United States Code, section 1552 as amended does not
permit any redress by this Board of the finality of a court-martial
conviction and empowers the Board to only change a discharge if clemency is
determined to be appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded
because the reason for his going AWOL was his mother's heart condition and
because his colonel recommended a better discharge was carefully
considered.  However, while it is clear he was experiencing personal
hardship based on the illness of his mother and his wife's pregnancy, and
that he performed hair cutting services while in confinement awaiting
discharge, these factors are not sufficiently mitigating to support an
upgrade of his discharge.

2.  The evidence of record confirms that the applicant departed on his last
AWOL period on 14 March 1971.  The death certificate provided by the
applicant shows that his mother died on 5 September 1971.  However, he
remained AWOL for almost 17 more months until returning to military control
on 22 January 1973.


3.  By law, any redress by this Board of the finality of a court-martial
conviction, after 1949 under the UCMJ, is prohibited.  The Board is only
empowered to change a discharge if clemency is determined to be appropriate
to moderate the severity of the sentence imposed.

4.  The applicant's record documents no acts of valor, significant
achievement, or service warranting special recognition.  Further, although
he may have originally departed AWOL based on his mother's heart condition,
this does not explain why he continued to stay AWOL for almost 17 months
after his mother died.  There is also no indication that he ever attempted
to resolve his family situations through his chain of command, or that he
ever applied for a compassionate reassignment or hardship discharge based
on his family situations prior to going AWOL.

5.  The evidence of record does show that he departed AWOL from his unit
while still in training without ever attempting to discuss his situation
with members of his chain of command.  Further, upon his return to military
control, he confirmed his lack of desire to perform continued military
service.  As a result, given his short and undistinguished record of
military service, there is an insufficient evidentiary basis to support
clemency in this case.

6.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__DKH __  __JRH __  __EEM__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




                                  _____David K. Hassenritter____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070010727                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2008/01/25                              |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |1973/05/07                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |GCM-BCD                                 |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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