MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  9 February 2000
	DOCKET NUMBER:   AR1999026455

	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. Theodore G. Heartley		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Deborah S. Jacobs		Member	
	Ms. Carol J. Suiter		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:  Correction of his military records by upgrading his discharge under conditions other than honorable.

APPLICANT STATES:  The applicant made no statement.  A copy of two DA Forms 8-274, Medical Condition-Physical Profile Record, dated 6 March and 24 April 1968 that were not available in his records, accompanied his request.

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

He enlisted in the Regular Army on 29 January 1965 for a period of 3 years.  He completed his initial and advanced individual training at Fort Ord, California and was assigned to duties as a tracked vehicle mechanic in military occupation specialty 63C in Hawaii on 20 September 1965.  On 10 November 1965, he was reassigned to Vietnam as a member of a unit deployment.

On 11 August 1966, he was reported AWOL from his unit in Vietnam and remained absent until 13 December 1967.

On 12 March 1968, he was convicted by general court-martial and sentenced to confinement at hard labor for 1 year, forfeiture of all pay and allowances, and a dishonorable discharge.  His sentence was approved on 16 April 1968.

DA Forms 8-274 dated 6 March and 24 April 1968, indicated 90 days of limited duty including no crawling, stooping, running, jumping, prolonged standing or marching, due to lower back pain from a ruptured disc.

His record of admission to the U.S. Disciplinary Barracks, Fort Leavenworth, Kansas dated 12 July 1968, provided his version of the circumstances leading to his AWOL and indicated, in effect, that he went on emergency leave from Vietnam to attend his mother’s funeral; that upon his arrival at Travis Air Force Base, his travel orders were taken from him and he was told that other orders would be mailed to his leave address; that after completing his leave, he contacted the American Red Cross and was granted a 15-day extension; that after the 15-day extension expired, he contacted Oakland Army Terminal since he still had not received orders; and that since Oakland Army Terminal provided no assistance, he remained absent until he turned himself in to military control.

The prison admission summary also included a psychiatric report stating, in effect and in pertinent part, that he was of Indian heritage and diagnosed with passive dependent personality, chronic and moderate, manifested by strong dependency needs, indecisiveness, anxiety, a need for acceptance, difficulty in tolerating stress and restriction, and a tendency to use poor judgement under 

stress.  His personal history indicated a very unstable family life including the death of his 48 year old father at age 11; the remarriage of his mother at age 
13 and his immediate removal from the family home by stepfather because of his Indian heritage; homelessness for 1 month; foster care for 6 months; and his return to the family home by his mother after divorcing his stepfather after only 
6 months of marriage.

The psychiatric report also indicated that he admitted to undergoing surgery in March 1968 for a ruptured disc and alleged that a nerve was severed during his surgery which subsequently rendered him physically disabled due to a limp, however, there was nothing to substantiate such surgery or physical condition in his available medical records.

The psychiatric report recommended that he not be restored to duty since he had no desire for such action primarily because he held the Army responsible for his physical handicap; and that he be granted clemency since further incarceration would not have any significant beneficial effect.

A general court-martial order issued by the U.S. Disciplinary Barracks, Fort Leavenworth, on 1 October 1968, indicated, in pertinent part, that his bad conduct discharge would be duly executed.

His DD Form 214, separation document, shows that he was discharged on 18 October 1968 under conditions other than honorable in accordance with his general court-martial conviction, after completing 1 year, 9 months and 12 days of creditable service with 489 lost time for AWOL and 220 days of lost time for confinement.

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 Board concludes that there was nothing in the applicant’s available records or in the evidence submitted by him to mitigate more than 1 year of AWOL and warrant a discharge upgrade.

2.  The Board noted that despite his very serious offense which had the potential for even greater consequences since it occurred under wartime conditions, military authorities demonstrated some leniency by granting him clemency and issuing him a less severe punitive discharge contrary to his general court-martial sentence of a dishonorable discharge.

3.  His punitive discharge resulting from a general court-martial was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.  The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.

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

________  ________  ________  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999026455	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2000/02/09	
TYPE OF DISCHARGE	(BCD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.