MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:           16 June 1999                  
	DOCKET NUMBER:   AC89-08888A
                                              AR1998014202

	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. P. A. Castle		Analyst	

  The following members, a quorum, were present:

	Mr. James M. Alward		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Allen L. Raub		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 request to upgrade his undesirable discharge.

APPLICANT STATES:  In effect, that at the time of discharge he was young and immature, under a lot of marital stress, and if he had not been shot he could have received a pardon like the rest of his friends.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum of record (MOC) prepared to reflect the Board's original consideration of his case on                    30 May 1990 (COPY ATTACHED).

The applicant contends that his behavior was mitigated by youth and immaturity and that his actions were as a result of his wife’s miscarriage and her decision to leave him.  While trying to escape from the stockade he was shot after the guard had told him he would not be shot.  The applicant contends if the command had gotten involved with his problems they could have been solved them and if he had not been shot he could have received a pardon.

Evidence of record shows that the applicant enlisted on 24 April 1967.  He successfully completed basic training and advanced individual training.

Upon notification of his commander’s recommendation for discharge, based on an established pattern of shirking, the applicant consulted with counsel and waived his rights.  The applicant was convicted by special court-martial on 27 January 1969 for being AWOL for 332 days. His sentence included confinement at hard labor for 6 months during which time he confided in a guard that he was going to escape.  The applicant states the guard promised not to shot him if he tried to escape and that when he did try the guard shot him.
  
Army Regulation 635-212, then in effect, set forth the policy and procedures for separation of enlisted personnel for unfitness.  Unfitness included repeated petty offenses and frequent incidents of a discreditable nature with military or civilian authorities.  Action to separate an individual was to be taken when, in the judgment of the commander, rehabilitation was impractical or was unlikely to produce a satisfactory soldier.  When separation for unfitness was warranted 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 applicant’s contentions that he was young and immature are without evidence or merit in light of the fact that he demonstrated the capacity to complete basic and advanced training.

2.  There is no evidence in the military records that the applicant was not able to seek help from the command regarding his stress and marital problems.  Army commanders spend many hours consulting with soldiers and assisting them with their family problems since it plays a part in the soldier’s attitude and morale.

3.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant’s overall record of military service.

4.  Prior to reaching the determination that it was not in the interest of justice to excuse the failure to timely file, the original Board looked at the entire file.  It was only after all other aspects had been considered and it had been concluded that there was no basis to recommend a correction of the records that the Board considered the statute of limitations.  Had the Board determined that an error or injustice existed it undoubtedly would have recommended relief in spite of the failure to submit the application within the 3 year time limit.  The Board has never denied an application simply because it was not submitted within the required time.

5.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

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

___JMA_  __MHM__  __ALB__    DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC89-08888A
AR1999014902	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990616	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .635-212 . . . .  	
DISCHARGE REASON		
BOARD DECISION	 DENY	
REVIEW AUTHORITY		
ISSUES        1.	110.00	
2.		
3.		
4.		
5.		
6.