MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:           14 July 1999
	DOCKET NUMBER:   AR1999023692

	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. Samuel A. Crumpler		Chairperson	
	Mr. Ernest M. Willcher		Member	
	Mr. John Saputo		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:  That his bad conduct discharge (BCD) be upgraded or that he be granted a clemency discharge.

APPLICANT STATES:  That the Sullivan Act or other such acts exclude the sole surviving son from going to war.  He states that had he been told that he was exempt from fighting in the Army, it would have prevented him from going AWOL. He further states that he has been married for almost 20 years and he has not been in any trouble, to include a traffic violation, in over 20 years.  In support of his appeal, he submits an article from a newspaper, dated 21 March 1968, reflecting the induction of two young men and himself, photographs of his sixth grade class and photographs of his wife and family.  He also submits a letter from a former employer dated 11 May 1994, a letter from a contractor dated 23 August 96, a certificate of recognition for being on the Lower Columbia College Dean’s Honorable Roll (Spring Quarter, 1996), a copy of his test results from the National Institute of Automotive Service Excellence dated 25 June 1996, and a copy of his Transcript Report from the Lower Columbia College. 

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

On 13 March 1968, he was inducted into the Army at Fort Lewis, Washington.  His Statement of Personal History (DD Form 398) which he prepared the day of his induction, lists his mother, father and two sisters as his family.  He went on to successfully complete his basic combat training.

Nonjudicial punishment was imposed against the applicant on 4 May 1968, for being AWOL from 30 March 1968 until 20 April 1968.  His punishment consisted of a forfeiture of pay.

On 26 June 1968, while he was in advanced individual training as a cook, he was convicted by special court-martial of being AWOL from 15 May until 11 June 1968.  His sentence consisted of confinement at hard labor and a forfeiture of pay.

He was convicted by a special court-martial on 23 August 1968, of being AWOL from 5 July until 2 August 1968.  His sentence consisted of confinement at hard labor and a forfeiture of pay.

On 22 September 1969, the applicant was convicted by a special court-martial of being AWOL from 12 November 1968 until 27 July 1969.  His sentence consisted of a BCD, confinement at hard labor and a forfeiture of pay.

The Court of Military Review affirmed the findings and sentence on 6 January 1970.  According, on 19 March 1970, he was discharged pursuant to a special court-martial conviction.  He had completed 6 months and 7 days of total active service.  He had approximately 544 days of lost time due to AWOL and confinement and he was issued a bad conduct discharge.

There is no evidence that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge.

Army Regulation 614-200 provides for the assignment of a sole surviving son or daughter.  It states, in pertinent part, that a sole surviving son or daughter is the only remaining son or daughter in a family in which the father, mother, or one or more sons or daughters was killed in action or died in the line of duty while serving in the Army Forces as a result of wounds, accident, or disease; is captured or mission in action; or is permanently 100 percent physically disabled as decided by the Veterans Administration or one of the Military Services and is hospitalized in a continuing basis and is not gainfully employed because of disability.

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 offenses 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 contentions have been noted by the Board.  However, at the time of his induction, he did not fit the criteria contained in AR 614-200 to be considered as a sole surviving son and his post-service conduct is not sufficiently mitigating to warrant the relief requested.

4.  Additionally, had the applicant qualified for sole-surviving son status, he would still have been eligible for induction but would not have been eligible for assignment to a hostile fire area unless he waived his rights to sole-surviving son status.

5.  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.

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

___js ___  ___ew___  ___sac __  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999023692	
SUFFIX		
RECON		
DATE BOARDED	1999/07/14	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	1970/03/19	
DISCHARGE AUTHORITY	AR 653-200 	
DISCHARGE REASON	675	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  708	144.7100/A71.00/Triable by CM: AWOL	
2.		
3.		
4.		
5.		
6.