-

MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:         10 February 1999     
	DOCKET NUMBER:   AR1999017306

	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	
	Mr. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Patrick Bogenberger		Chairperson	
	Mr. Elzey J. Arledge, Jr.		Member	
	Mr. Gary F. Geraets		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)

APPLICANT REQUESTS:  Reconsideration of his previous application to correct his records by upgrading his discharge to honorable.

APPLICANT STATES:   That he tried to stay in the Army and to right the wrong that he did.  However, the Army was having a reduction in force and a lot of personnel were being released.  His counsel [military counsel at his court-martial] lacked interest in his case.

He joined the Army after he finished high school, straight from the farm.  He did a foolish and stupid thing by going AWOL, but only because his wife was having their first son, and she was young and scared.  He tried to obtain an emergency leave, but the paper work was muddled.  When he returned from AWOL he was informed he would be court-martialed and sent to the stockade; he was scared and went AWOL again.  After he returned, he was court-martialed and given an undesirable discharge.  He did not get to plead his case and his military counsel stated that an undesirable discharge was not too bad.   He was very foolish.  He tried to get back into the Army but was denied.  It [the discharge] occurred over forty years ago and he has paid enough.  If he had to do it over again he would not make the same mistakes.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 9 September 1987 (COPY ATTACHED).

The applicant’s date of birth is 25 April 1934.

The 27 April 1956 record of court-martial does show he had 9 months and 2 days of prior service from 30 August 1954 to 1 June 1955, prior to his current enlistment beginning on 2 June 1955.  It shows that he pled guilty to AWOL on two occasions from 17 December 1955 to 5 January 1956, and from                   6 January 1956 until 4 April 1956, and that on the latter AWOL period he was apprehended by civilian authorities at Niagara Falls, New York, on                    29 March 1956, and returned to military control on 4 April 1956.  The AWOL periods were verified from extracts of the morning reports of Company A,      503d Airborne Infantry Regiment.  The record also shows that the court sentenced the applicant to be confined at hard labor for six months and to forfeit $28.00 per month for six months.

On 4 August 1965 the applicant was notified that the Army Discharge Review Board had denied his request to change the type and nature of his discharge.

In 17 August 1982 the applicant made application to this Board requesting that his undesirable discharge be upgraded to honorable, and provided pages from the record of his court-martial, stating that his military counsel was young and inexperienced and his case was not handled satisfactorily, he was not informed that he could have enlisted members on the court, that he was led to believe that he had no rights, that he was not told that he could challenge any member of the court, and was advised that the should waive the three day waiting period.  He stated that he pled guilty, was advised by his counsel to remain silent, and that there was no effort to determine if his personal problems had a bearing on his case, nor any effort made concerning his military record or civilian background.  He also stated at that time that he was young and foolish and that his wife was having their first child.

On 6 October 1983 this Board informed him that it could not make a decision on his case because of a lack of documentation, and that he could reapply if he could submit the necessary supporting documentation.

It wasn’t until 27 March 1987 that he again made application to this Board, stating that he believed that his record to be in error or unjust because of the mistakes made in the record of his court-martial, resulting in the aforementioned                          9 September 1987 Board decision on his request.   

In an attempt to obtain his records, the applicant provided information that he served in the Army from June of 1953 until June of 1956, that he completed training at Fort Dix, New Jersey, infantry training at Fort Knox, Kentucky, airborne training at Fort Bragg, North Carolina, and ranger school at Fort Benning, Georgia.

A certification of military service prepared on 4 January 1993 shows that the applicant received an undesirable discharge on 27 June 1956.

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 applicant's contention that he was young and immature at the time is not sufficiently mitigating to warrant relief. The Board notes that the applicant was over 21 years old at the time of his first AWOL, and that he had completed not only basic and advanced training, but also as he has stated in his request for records, airborne and ranger training.  He had served at least 15 months in the Army prior to going AWOL.

2.  The applicant’s insinuations that his court-martial was unfair, because of the inexperience of his military counsel, and the lack of opportunity to present his case is not borne out by any information or evidence that he has submitted.

3.  Although there is no record concerning the applicant’s discharge proceedings, 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. 

4.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to grant the relief requested.

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

__pb___  __eja___  __gfg___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999017306	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990210	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.110.00		
2.105.00		
3.		
4.		
5.		
6.