MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            13 May 2003 
	DOCKET NUMBER:   AR2003083527

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Ted S. Kanamine		Member	
	Mr. Lawrence Foster		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 undesirable discharge be upgraded to an honorable or general discharge.

APPLICANT STATES:  That his overall combat service was not given consideration at the time of his discharge.

EVIDENCE OF RECORD:  The applicant's military records, though somewhat incomplete, show:

He was inducted in Oklahoma on 21 August 1967 and was transferred to Fort Polk, Louisiana, to undergo his training.  While attending his advanced individual training (AIT), he went absent without leave (AWOL) from 2 January to 5 January 1968.  The record is silent as to any punishment imposed. 

He completed his training and was transferred to Vietnam on 8 March 1968, for duty as a light weapons infantryman.  He was advanced to the pay grade of E-4 on 20 June 1968 and his records show he was awarded the Combat Infantryman Badge, the Purple Heart, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal and the Republic of Vietnam Gallantry Cross with Palm Unit Citation for his 6 months of service in Vietnam.

On 31 July 1968, while still in Vietnam, he was granted 30 days of emergency leave due to the death of his brother.  

The applicant did not return to his unit after his leave and was reported as AWOL effective 31 August 1968.  He remained absent until he was returned to military control at Fort Sill, Oklahoma, on 10 September 1968.  Again, the record is silent as to any punishment imposed.

He again went AWOL from 15 September through 16 September and 30 September 1968 through 8 February 1969.  He was convicted of the AWOL offenses by a special court-martial on 4 March 1969 and was sentenced to confinement at hard labor for 6 months and a forfeiture of pay.

He again went AWOL on 8 September 1969 and remained absent until he was apprehended and confined by civil authorities on 22 December 1969.  He was returned to military control where he was convicted by a special court-martial on 22 January 1970, of the AWOL offense.  He was sentenced to confinement at hard labor for 6 months (confinement in excess of 45 days suspended for 4 months), reduction to the pay grade of E-1 and a forfeiture of pay.

He again went AWOL on 9 March 1970 and remained absent until he was returned to military control on 24 March 1970.

The facts and circumstances surrounding his administrative discharge are not present in the available records.  However, his records do contain a duly constituted report of separation (DD Form 214) signed by the applicant, which shows that he was discharged under other than honorable conditions on 7 May 1970, under the provisions of Army Regulation 635-212 for unfitness due to an established pattern for shirking.  He had served 1 year, 4 months and 23 days of total active service and had 479 days of lost time due to AWOL and confinement.

There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  It provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil and/or military authorities, established pattern for shirking, established pattern of failure to pay just debts, drug addiction, failure to support dependents and lewd or indecent acts were subject to separation for unfitness.  An undesirable discharge was 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 the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in accordance with applicable regulations with no procedural errors that would tend to jeopardize his rights.

2.  Accordingly, the type of discharge and the reasons therefore were appropriate considering the available facts of the case.

3.  The applicant’s contentions have been noted by the Board.  However, they are not sufficiently mitigating to warrant relief when compared to his overall record of service.  Furthermore, the applicant committed his last AWOL offense while under suspension from his last court-martial and was subject to have the remainder of his sentence vacated. 

4.  The Board finds it reasonable to presume that the chain of command considered his combat service when it elected to administratively discharge him rather than court-martial him for his latest offenses and make him serve the vacated portion of his previous court-martial sentence.  In doing so, they prevented him from possible conviction by another court-martial and serving any additional confinement. 

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

__tk ____  __lf_____  ___mkp__  DENY APPLICATION

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

INDEX

CASE ID	AR2003083527	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2003/05/13	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1970/05/07	
DISCHARGE AUTHORITY	AR635-212	
DISCHARGE REASON	UNFIT	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  583	144.5000/A51.00	
2.		
3.		
4.		
5.		
6.