MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  6 May 1999
	DOCKET NUMBER:   AC9812096
                                              AR1999015224

	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. Loren G. Harrell		Director	
	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Ernest W. Lutz		Member	
	Ms. Carol Jo 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:  That his undesirable discharge (UD) be upgraded to a general discharge (GD). 

APPLICANT STATES: In effect, that he was psychologically and physically abused by his drill instructors, because he had a preexisting medical condition which precluded him from going to Vietnam.  Further, he stated that he did not tell anyone about the abuse because he feared reprisal.  Treatment by the drill instructors was the main reason for his violation of the Uniform Code of Military Justice (UCMJ).  In support of his request, he provided a letter written in his own behalf, a letter written by his mother, a letter written by his wife, letters written by two friends, a psychological evaluation by the military, military personnel records, and army medical records for the Board to consider.

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

On 23 January 1968, the applicant was inducted into the Army of the United States for a period of 2 years and training in military occupational specialty (MOS) 67A (General Aircraft Repairer). 

On 1 April 1968, after completing basic training, the applicant was assigned to Fort Jackson, South Carolina for advanced individual training (AIT).  On 14 April 1968, he departed AWOL and remained AWOL until 20 August 1968; he was returned to military control at Fort Knox, Kentucky.  On 20 September 1968, he was convicted by a special court-martial for the aforementioned period of AWOL. He was sentenced to confinement at hard labor for 4 months and forfeiture of pay.  On 26 November 1968, he was released from confinement at Fort Riley, Kansas in casual leave status enroute to Fort Leonard Wood, Missouri, for AIT. 

On 9 December 1968, he failed to report for training at Fort Leonard Wood and was declared AWOL.  He remained AWOL until he was returned to military control and assigned to the Personnel Confinement Facility (PCF), Fort Knox, Kentucky, on 24 February 1972.  

On 29 March 1972, while still confined at the PCF, the applicant underwent a psychological evaluation by professionally trained personnel.  He complained that he had some physical problems that should have prevented his induction into the military.  He stated that at an early age he suffered from polio and that he still had weak legs and problems standing for long periods of time.  He stated that at age 17, half of his spleen had been removed and that he continuously suffered from urinary problems.  The examining official diagnosed him to be well oriented and his thoughts were organized.  His judgement and memory were diagnosed to be intact and his intelligence was well within normal bounds.  He presented a stable mature impression and he showed no indication of unusual anxiety or nervousness.  Further, he displayed no symptoms of neurosis, psychosis, or character disorder.  The examining official recommended that he be discharged under the provisions of Army Regulation 635-200, for the benefit of the service and the service member.

On 26 April 1972, while confined at the PCF, Fort Knox, the applicant underwent a second psychological evaluation and the diagnosis was exactly the same as the first diagnosis except for the following additional remarks.  He was diagnosed to have displayed an introverted personality.  He stated that his major reason for going AWOL was that he wanted to be at home with his wife and family, since both his mother and stepfather were ill.  He also stated he could not adjust to the military because large crowds of people made him nervous.  He still showed no indication of unusual anxiety or nervousness.  Again, the examining official recommended that he be discharged under the provisions of Army Regulation 635-200, for the benefit of the service and the service member.

On 4 May 1972, he went AWOL again.  On 10 December 1972, he was apprehended by Huntington, West Virginia, civil authorities and returned to military control on 18 December 1972.  

According to the applicant’s service record, he was convicted by a general court-martial on 14 March 1973, presumably for a violation of Article 86, Uniform Code of Military Justice, for AWOL.  The charges are not shown, but he was sentenced to a bad conduct discharge (BCD), confinement at hard labor for 4 months, and forfeiture of all pay and allowances.

Upon completion of his sentence to confinement, he was placed on excess leave on 19 June 1973 pending the appellate review of his conviction.  On 16 August 1973, the appellate review was completed and the conviction and sentence were upheld.  The applicant’s BCD was ordered executed.

On 19 November 1973, the applicant was discharged with a BCD under the provisions of Army Regulation 635-200 by reason of court-martial.  He had completed 8 months and 3 days of active military service.  He also had a total of 637 days lost time due to being AWOL and in confinement and an additional 1,243 days lost time subsequent to normal ETS.  He did not complete MOS training and was still considered a trainee (MOS 09B).

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11, paragraph 11-2, provides that a soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.
The record indicates that the applicant either applied on his own or was notified by the Government that he might qualify for a clemency discharge under the provisions of Presidential Proclamation 4313 (PP 4313).  What is clear is that, on 26 July 1976, he was awarded a clemency discharge under the provisions of PP 4313 and upon clemency of a prescribed period of alternative service.

Presidential Proclamation 4313, issued on 16 September 1974, affected three groups of individuals:  fugitives from justice who were draft evaders; members of the Armed Forces who were in an AWOL status; and prior members of the Armed Forces who had been discharged with a punitive or undesirable discharge for violation of Articles 85, 86, or 87 of the Uniform Code of Military Justice.  The last group could apply to the Presidential Clemency Board which was made up of individuals (civilians, retired military and members of the Reserve Components) who were appointed by the President to make a determination regarding the performance of alternate service and the issuance of a clemency discharge.  The dates of eligibility for consideration under this proclamation for those already discharged from the military service were 4 August 1964 to 28 March 1973, inclusive.  Alternate service was to be performed under the supervision of the Selective Service System (SSS).  When the period of alternate service was satisfactorily completed, the SSS notified the individual's former military service.  The military service then issued the actual clemency discharge.  The clemency discharge is a neutral discharge, issued neither under "honorable conditions" nor under "other than honorable conditions."  It is to be considered as ranking between an undesirable discharge and a general discharge.  A clemency discharge does not effect the underlying discharge and does not entitle the individual to any benefits administered by the Department of Veterans Affairs (formerly Veterans Administration).  While there is no change in benefit status per se, a recipient may apply to the Department of Veterans Affairs for benefits.

The statutory authority under which this Board was created (Title 10, United States Code, section 1552, as amended) precludes any action by this Board which would disturb the finality of a court-martial conviction.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), 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 the aforementioned requirement.

2.  Trial by court-martial was warranted by the gravity of the offenses charged.  The conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

3.  The documents provided by the applicant are not probative evidence showing that the applicant was mentally or physically abused by military personnel, nor does it provide mitigating circumstances for the misconduct he continuously engaged in and for which he was court-martialed and discharged.  Statements made by the applicant at the time of his court-martial indicate that he went AWOL in order to be with his wife and family, and not because of any alleged maltreatment.

4.  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____  EWL____  CJS_____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-12096/AR1999015224	
SUFFIX		
RECON		
DATE BOARDED	19990506	
TYPE OF DISCHARGE	(UD)	
DATE OF DISCHARGE	19731119	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	Court-martial	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	The main reason for his violation of the UCMJ was that he was psychologically and physically abused by his drill instructors, because of a preexisting medical condition. 	
2.		
3.		
4.		
5.		
6.