MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            10 March 1999  
	DOCKET NUMBER:   AC98-12387
				   AR1998013168

	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.	Loren G. Harrell		Director	
	Ms.	Deyon D. Battle		Analyst	

	The following members, a quorum, were present:

	Mr.	Fred K. McCoy		Chairperson	
	Ms.	Meta Waller		Member	
	Mr.	Kenneth L. Wright		Member	

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	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)

APPLICANT REQUESTS:  That his bad conduct discharge (BCD) be upgraded to an honorable discharge.

APPLICANT STATES:  That he needs to have his discharge upgraded to receive his VA benefits.

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

On 17 February 1970, he enlisted in the Army for 3 years in the pay grade of
E-1.  He went on to successfully complete his training as an asphalt plant operator.  On 13 September 1970, he was promoted to the pay grade of E-3.

Nonjudicial Punishment (NJP) was imposed against the applicant for being AWOL from 7 August until 10 August 1970.  His punishment consisted of a forfeiture of pay.

He had NJP imposed against him again for being AWOL from 24 August until 28 August 1970.  His punishment consisted of a reduction in pay grade.

The applicant had NJP imposed against him on 10 November 1970, for failure to go to his appointed place of duty and for willfully and wrongfully discharging a firearm as to endanger human life.  His punishment consisted of a reduction in pay grade and extra duty.

On 19 March 1971, NJP was imposed against him for being disrespectful to his superior noncommissioned officer.  His punishment consisted of a forfeiture of pay and restriction.

The applicant was barred from reenlistment on 10 April 1970, as a result of his habitual misconduct.

On 23 May 1971, he went AWOL and he remained absent until he was apprehended by civil authorities and returned to military control on 27 June 1973.  He was subsequently placed in pretrial confinement.

The applicant was notified that charges were pending against him for being AWOL.  On 19 July 1973, and after consulting with counsel, he submitted a request for discharge, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  On 9 August 1973, his request was denied by the commanding general who directed that he be tried by a general court-martial.

On 30 August 1973, the applicant was convicted by a general court-martial of being AWOL.  His sentence consisted of a BCD, confinement at hard labor, a forfeiture of pay and a reduction in pay grade. 

The sentence was approved by the appropriate authority.  Accordingly, on 4 September 1974, the applicant was discharged under the provisions of Army Regulation 635-200, as a result of his court-martial conviction.  He had completed 1 year, 11 months and 16 days of total active service.  He had approximately 645 days of lost time due to AWOL and confinement and he was issued a Bad Conduct Discharge Certificate.

The applicant applied to this Board for an upgrade of his discharge on 23 May 1977.  The Board denied his request on 9 December 1977.

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 actions by the Army in this case were proper, and there is no doubt to be resolved in favor of the applicant.

2.  Trial by court-martial was warranted by the gravity of the offense charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

3.  The applicant's had approximately 645 days of lost time due to his AWOL and confinement.  The fact that he now wants to receive VA benefits is not sufficiently mitigating to warrant relief.

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 the aforementioned 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

__mw___  ___klw __  __fkm___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-12387/AR1998013168	
SUFFIX		
RECON	 	
DATE BOARDED	1999/03/10	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	1974/09/04	
DISCHARGE AUTHORITY	AR635-200	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  877	A94.07	
2.  675	144.680	
3.  261	123.010	
4.		
5.		
6.