MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  1 February 2001
	DOCKET NUMBER:  AR2000046297

	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. Carl W. S. Chun		Director	
	Mr. Paul A. Petty		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Ms. Barbara J. Lutz		Member	
	Mr. James E. Anderholm		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:  In effect, that his bad conduct discharge be upgraded to an honorable discharge.

APPLICANT STATES:  In effect, that his bad conduct discharge was too severe for the violations of AWOL and missing a unit movement.  He states that he went AWOL because his wife was having a baby and he felt compelled to be there by her side.  He states his AWOL was not a blatant disregard for or toward the UCMJ. However, he concedes that at the time he acted totally oblivious to his duties as a member of the U.S. military.  He asks for forgiveness and a compassionate discharge upgrade.  He submits two letters of reference that attest to his volunteerism and work at a Veterans Affairs (VA) Hospital and his personal commitment to religion.

COUNSEL STATES:  The former service member’s contentions are clearly outlined on his application which is of record.  Although his infractions did constitute military misconduct, he is not a criminal and persons in similar situations have been afforded nonjudicial punishment and fined other than discharged.  In this particular case, the former service members contends that there were mitigating and extenuating circumstances surrounding his case. 

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

He enlisted in the Regular Army on 28 December 1976 through the delayed entry program.  He completed Basic Combat Training and Infantry Advanced Individual Training at Fort Benning, Georgia.  On 16 May 1977, he was assigned to the 
87th Infantry in Germany as a rifleman.  On 1 May 1978, he was advanced to the rank of Private First Class (PFC).  On 11 May 1978, he was punished under Article 15, UCMJ, for failing to go at the time prescribed to Post Guard Mount and for willful damage of a building by kicking in a door.  He was reduced to Private, pay grade E-2, suspended; forfeited $103.00, and was placed on restriction and extra duty for 14 days.  He was advanced to Specialist Four (SP4) on 1 March 1979.  He was honorably discharged on 2 October 1979 for immediate reenlistment.

The applicant reenlisted on 3 October 1979 for a 4 year term of service.  
On 18 January 1980, he was reassigned to the Combat Support Company, 
3rd Battalion, 7th Infantry, at Fort Benning.  He went AWOL on 13-20 May 1980 according to Personnel Action Forms, DA Form 4187, in his file.  He was punished for being AWOL 16-19 May 1980, under Article 15, UCMJ, by reduction to PFC, forfeiture of $60, and 14 days restriction and extra duty.

He again went AWOL from 30 May to 1 June 1980, but there is no record of punishment.  He again went AWOL 21-22 July 1980 for which he was punished under Article 15, UCMJ, by forfeiture of $50 and 7 days restriction and extra duty.

He again went AWOL 6-13 August 1980 for which he was punished under a field grade Article 15, UCMJ, by reduction to Private (pay grade E-2), forfeiture of one half months pay, and 30 days extra duty.

He again went AWOL 2-4 September 1980 and 15-17 September 1980 for which he was convicted by a special court-martial on 9 October 1980 and sentenced to reduction to Private (pay grade E-1) (PV1) and 20 days hard labor without confinement.

He again went AWOL from 14 November to 3 December 1980 and he missed a unit movement by design on 16 November 1980, a violation of Article 87, UCMJ. He was convicted by a special court-martial on 28 January 1981 and sentenced to confinement at hard labor for one month, forfeiture of $344.00, and a bad conduct discharge.

While he was waiting for approval of the court-martial sentence, he was punished under Article 15, UCMJ, for departing his place of duty without authority.  He was punished by 14 days extra duty and forfeiture of $116.00.

He was discharged on 23 October 1981 with a bad conduct discharge at the rank of PV1 in accordance with the special court-martial sentence.  He had a total of 
151 lost days due to AWOLs and one resulting confinement.

The applicant appealed to the Army Discharge Review Board (ADRB) for a discharge upgrade.  The ADRB reviewed his record on 7 January 1983.  The ADRB, finding the applicant’s bad conduct discharge to be proper and equitable, denied an upgrade.

The applicant applied to the Army Board for Correction of Military Records on 
9 August 1999 contending that there were errors and injustice in his court-martial.  He was notified that Title 10, USC, section 1552, precludes any action by the Board that would disturb the finality of a court-martial conviction.

According to the Manual of Courts-Martial, the maximum punishment for violation of Article 87, missing movement by design is a dishonorable discharge, confinement for 2 years, and total forfeiture of all pay.

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 had a history of 7 AWOLs for a total of 75 days lost between May and December 1980.  He received 5 known Articles 15 for AWOLs and for 

three other offenses.  He missed a unit movement by design, the violation of which carries a maximum punishment of a dishonorable discharge, 2 years confinement, and total forfeiture of all pay.  His final court-martial sentence was much less severe; a lesser bad conduct discharge, only 1 month confinement, and forfeiture of only $344.00.  In light of his conduct and the violations for which he was court-martialed, his bad conduct discharge is not considered too severe, and is, in fact, lenient when compared to the maximum punishment possible.

2.  Considering the applicant’s conduct; 7 AWOLs, 5 Articles 15, and 2 special courts-martial; his service cannot be considered honorable and worthy of an honorable discharge.

3.  While there is understanding of the applicant’s desire to be with his wife during the birth of their first child, this does not excuse his misconduct.  These circumstances are not sufficiently mitigating to excuse his AWOLs and missing unit movement.

4.  While the applicant’s volunteerism and work at a VA Hospital and his personal commitment to religion are commendable, they cannot compensate for misconduct which led to his discharge.

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

___ls___  ___bl____  __ja____  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000046297	
SUFFIX		
RECON		
DATE BOARDED	20010201	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  110.00	Discharge/Separation Documents	
2.		
3.		
4.		
5.		
6.