MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            16 December 1999
	DOCKET NUMBER:   AR1999024194

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Fred K. McCoy		Chairperson	
	Mr. Raymond V. O’Connor, Jr.		Member	
	Mr. Stanley Kelley		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 be upgraded to a more favorable discharge.

APPLICANT STATES:  That he enlisted in 1971 for a 3 year enlistment and should not have been discharged in 1975.  He further states that he only went AWOL and that the punishment he received was too harsh considering that he was an above average soldier for his first 2 ½ years.  He also states that he worked in the officer’s mess in Germany and that stress and hashish were the cause of his going AWOL.

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

The applicant enlisted on 29 September 1971 for a period of 3 years.  He successfully completed his basic training at Fort Knox, Kentucky and was transferred to Fort Ord, California to undergo his advanced individual training (AIT) as a field wireman.  For reasons not explained in the available records, he did not complete his AIT as a field wireman and was transferred to another company to undergo AIT as a food service specialist.  His conduct and efficiency were rated as fair during that time.

He completed his AIT as a food service specialist at Fort Lee, Virginia where his conduct and efficiency were deemed excellent and he was promoted to the pay grade of E-4 on 5 July 1972.  He was then transferred to Germany on 17 December 1972.

On 26 April 1973 nonjudicial punishment (NJP) was imposed against the applicant for failure to go to his place of duty.  His punishment consisted of a forfeiture of pay and a suspended reduction to the pay grade of E-3.

On 17 July 1973 NJP was imposed against the applicant for two specifications of failure to go to his place of duty.  His punishment consisted of a forfeiture of pay and extra duty and restriction.

On 3 August 1973 NJP was imposed against the applicant for two specifications of failure to go to his place of duty and for being AWOL from 30 to 31 July 1973.  His punishment consisted of a reduction to the pay grade of E-3, a forfeiture of pay and restriction.

The applicant was convicted by a summary court-martial on 18 September 1973 of six specifications of failure to go to his place of duty.  He was sentenced to be reduced to the pay grade of E-1 and a forfeiture of pay.

The applicant was convicted by a special court-martial on 3 December 1973 of six specifications of failure to go to his place of duty, being AWOL from 24 September to 28 September 1973 and two specifications of disobeying a lawful order from a superior NCO.  He was sentenced to confinement at hard labor for 6 months, a forfeiture of pay for 6 months, and a bad conduct discharge. 

The convening authority approved only so much of the sentence as provided for confinement at hard labor for 90 days, forfeiture of pay for 6 months, and a bad conduct discharge.

The applicant served his confinement and was transferred to Fort Benning, Georgia on 21 September 1974, pending completion of his appellate review.

On 5 January 1975 he went AWOL and remained absent until he was apprehended by military authorities on 6 April 1975.  There is no evidence in the available records to show that the applicant received any punishment for this offense.

Meanwhile, the Court of Military Review affirmed the findings and sentence of the special court-martial as approved by the convening authority.  Orders were published in his absence on 14 January 1975 directing that the sentence of a bad conduct discharge be duly executed.

Accordingly, he was discharged under other than honorable conditions pursuant to the sentence of a special court-martial on 24 April 1975.  He had served 3 years, 3 months, and 21 days of total active service and had 95 days of lost time due to AWOL.
 
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.  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.

2.  The type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case.

3.   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.

4.  The applicant’s contention that he was an above average soldier is not supported by the evidence of record.  The applicant’s disciplinary record coupled with his undistinguished record of service are not sufficient to mitigate relief in his case.

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

__sk ____  ___fkm__  __rvo ___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999024194	
SUFFIX		
RECON		
DATE BOARDED	1999/12/16	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	1975/04/24	
DISCHARGE AUTHORITY	AR635-200	
DISCHARGE REASON	SPCM	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  675 	144.6800/A68.00	
2.		
3.		
4.		
5.		
6.