MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  20 November 2001
	DOCKET NUMBER:  AR2001060192

	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. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Ms. Regan K. Smith		Member	
	Mr. Melvin H. Meyer		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 discharge under other than honorable conditions be upgraded.

APPLICANT STATES:  He was as air traffic controller assigned to an artillery unit in Germany with airfield responsibilities.  He tried to report unsafe conditions but was prohibited by his unit commander.  Even after several close incidents the unit commander would not try to fix the safety issues.  He was granted an emergency leave for the illness of his mother.  While at home he reported the safety incidents to a Member of Congress.  His mother was not improving and he asked for more emergency leave.  He never received a response but the Red Cross and his Senator told him not to worry and stay with his mother.  He was later arrested and sent to trial.

His two civilian attorneys were not told of the court date and his military attorney was not a lawyer.  The only issue that was discussed was a claim that he was a child beater not a deserter.  He served 6 months in the stockade and was returned to his unit.  His request for a transfer was not approved so he departed absent without leave (AWOL) as his only choice.  He was apprehended and assigned as a “discharge clerk” while he awaited trial.  He filled out and applied for his own discharge because he did not care what kind of discharge he received.

He has been a model citizen and is a retired steamfitter.  He applied for a discharge upgrade many years ago but never heard anything.  He is again requesting an upgrade of his discharge.

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

He reenlisted on 20 March 1963, with 30 months prior Marine Corps service and 2 years Army service.  He was trained as both an infantryman and an air traffic controller.  He was promoted to the pay grade of E5 effective 19 June 1965.  Effective 13 September 1965, he was assigned to Germany as an air traffic controller to an artillery battery.

He was punished under Article 15, of the Uniform Code of Military Justice (UCMJ) on 17 February 1966, for absence from his place of duty.  On 6 October 1966, the applicant was convicted by a special court-martial of AWOL from 22 April to 8 September 1966.  The applicant’s DA Form 20 shows that he was in the hands of civil authorities (confinement) from 14 to 21 April 1966.  He was sentenced to 6 months confinement at hard labor and served 148 days.  He was also reduced to the pay grade of E-1.

On 11 March 1967, the applicant was AWOL again.  He was apprehended by Federal authorities on 8 February 1968, and returned to military control.

On 17 February 1968, the applicant requested separation based on financial hardship.  The unit commander recommended approval but there is no evidence of record that this request was further acted on by the proper authorities.

On 3 April 1968, the applicant was convicted by a special court-martial of 334 days AWOL.  The approved sentence included confinement at hard labor for 6 months and a forfeiture of pay.  

The facts and circumstances of the applicant’s administrative separation are not in the available record or provided by the applicant.  Effective 2 May 1968, the applicant was separated under the authority of Army Regulation 635-212 for unfitness.  He had a total of 5 years, 9 months, and 17 days creditable service and 667 days lost time.

Army Regulation 635-212, in effect at the time, provided the policy for the separation of enlisted personnel for unfitness.  An individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities or an established pattern of shirking.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

The available records contain a copy of the applicant’s approved emergency leave for an unspecified time in 1962 when he had been assigned to Korea.  There is no documentation in the available record to support the applicant’s contentions concerning his mother’s illness, his need to extend his emergency leave, or that his request was never acted on.

There is no evidence of record that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within the 15-year time limit.

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.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge and the reasons therefore were commensurate with his overall record.

2.  His contention that he remained in an AWOL status for almost 5 months while he waited approval of additional emergency leave is without credibility.  Additionally, there is no evidence of record to show that he was tried for charges other than AWOL.

3.  His claim of good post service conduct is commendable, but it does not serve as an overriding consideration to excuse 667 days of lost time and the granting of a discharge upgrade.

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 this 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

__jp___  ___rs____  ___mm_____  DENY APPLICATION

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

INDEX

CASE ID	AR2001060192	
SUFFIX		
RECON		
DATE BOARDED	20011120	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19680502	
DISCHARGE AUTHORITY	AR 635-212	
DISCHARGE REASON	A54.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.02	
2.		
3.		
4.		
5.		
6.