MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           10 January 2002                   
	DOCKET NUMBER:   AR2001062073

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Ted S. Kanamine		Member	
	Mr. John T. Meixell		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 (UOTHC) be upgraded.

APPLICANT STATES:  That he could not have been absent for 596 days.  He was in the hospital for 234 (sic) of those days, not counting stockade time.  Even given the adjustment of his separation date based upon his earlier absent without leave (AWOL) time, he should have been separated upon his release from the hospital.  He provides his Report of Transfer or Discharge, DD Form 214, extracts from his medical records, and page 4 of his Enlisted Qualification Record, DA Form 20, as supporting evidence.

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

He enlisted in the Regular Army on 15 July 1969 for 2 years.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 94B (Cook).

The applicant was AWOL for the first time from 23 – 25 January 1970.  

On 27 July 1970, the applicant was convicted by a special court-martial of two specifications of AWOL.  His sentence included hard labor without confinement.

The applicant was AWOL again from 14 – 17 August 1970 and 5 – 9 March 1971.  He was placed in pre-trial confinement on 24 April 1971.  

On 30 April 1971, the applicant was hospitalized for aggressive hepatitis and post-necrotic cirrhosis.  On or about 15 October 1971, he was placed on convalescent leave.  His DA Form 20 shows he was released from pre-trial confinement on 1 November 1971.  He was assigned to the Medical Holding Company on 10 November 1971.  He departed AWOL on 1 December 1971 and was dropped from the rolls and discharged from the hospital on 10 December 1971.  A Clinical Record Cover Sheet, DA Form 3647-1, shows that he spent 224 days in the hospital -- an admission date of 30 April, Julian date 120, plus 224 equals Julian date 344, 10 December.

The applicant returned from AWOL on 13 January 1972, was placed in pre-trial confinement from 24 January- 28 March 1972, and went AWOL again from       24 April – 30 November 1972.

The court-martial charges and the discharge proceedings packet are not available.

On 16 January 1973, the applicant received a mental status evaluation and was found to be able to distinguish right from wrong and to adhere to the right and to have the mental capacity to understand and participate in board proceedings.
On 12 February 1973, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with a discharge UOTHC.  He had completed 1 year, 11 months, and 10 days of creditable active service.  His DD Form 214 shows he had 596 days of lost time.  

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  A discharge UOTHC is normally considered appropriate.

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 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 and, 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.  Considering the number of times he went AWOL and the length of his AWOL periods, the type of discharge given was and still is appropriate.

2.  The 224 days the applicant was hospitalized (actually less, since he was officially discharged from the hospital on 10 December 1971 but had departed on convalescent leave on or about 15 October 1971 but more likely 1 November 1971, the day he was released from pre-trial confinement) cannot be counted as “good time.”  The fact he was not physically confined to a stockade during all or a portion of this period does not negate the fact he was under confinement orders.

3.  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

__fne___  __tsk___  __jtm___  DENY APPLICATION

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

INDEX

CASE ID	AR2001062073	
SUFFIX		
RECON		
DATE BOARDED	20020110	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19730212	
DISCHARGE AUTHORITY	AR 635-200, ch 10	
DISCHARGE REASON	A70.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.