MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            12 August 1999
	DOCKET NUMBER:    AR1999014764

	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	
	Mr. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. James M. Alward		Member	
	Ms. Meta Waller		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 honorable, and that the reason for his discharge be changed to medical.

APPLICANT STATES:  In effect, that his discharge was inequitable because necessary Army records are not available and that the keeping of his Army service records was reckless, and the reason for his discharge should be medical.

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

On 3 February 1970, the applicant was inducted into the Army of the United States for a period of 2 years at the age of 21.  He successfully completed basic training at Fort Polk, Louisiana, and remained there to participate in training for military occupational specialty 94B (Cook).  

The applicant’s record reflects that the highest rank the applicant held while on active duty was private/E-2.  There are no documented acts of valor, significant achievement, or service warranting special recognition contained in the service record.  However, there is an extensive recorded history of AWOL related disciplinary infractions which includes the applicant’s  acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the UCMJ; his trial and conviction by special courts-martial on three separate occasions; and 1079 days of time lost due to AWOL and confinement.

On 5 May 1970, the applicant accepted an NJP for being absent from his place of duty from 0530 hours to 2345 hours on 4 May 1970.  His punishment for this offense included a forfeiture of $20.00 and 7 days of extra duty and restriction.

On 10 December 1970, the applicant was tried and convicted by special court-martial, of violation of Article 86 of the UCMJ, for being AWOL from 1 to 21 June 1970.  His sentence included confinement at hard labor for 60 days; reduction to the rank of private/E-1; and a forfeiture of $50.00 per month for 2 months.

On 7 July 1971, the applicant was again tried and convicted by special court-martial, of violation of Article 86 of the UCMJ, for being AWOL from 15 February to 8 June 1971.  The resultant sentence was confinement at hard labor for 
115 days.

On 8 December 1972, the applicant underwent his last trial and conviction by special court-martial, also for violation of Article 86 of the UCMJ, for being AWOL from 14 October 1971 to 23 August 1972.  He was sentenced to receive a bad conduct discharge; to be confined at hard labor for 139 days; and to forfeit $100.00 per month for 5 months. 

The court-martial was promulgated and the sentence approved in Special Court-Martial Order Number 5, Headquarters 1st Cavalry Division, Fort Hood, Texas 76545, dated 23 January 1973, which forwarded the record of court-martial to the Judge Advocate General of the Army for review by the Court of Military Review, and directed that the applicant be confined in the Installation Confinement Facility or elsewhere as competent authority may direct.

On 29 March 1973, Special Court-Martial Order Number 57, Headquarters United States Disciplinary Barracks, Fort Leavenworth, Kansas, directed that the applicant having served his period of confinement be restored to active duty pending the completion of the appellate review.  As a result of this action the applicant was assigned to Headquarters Command, Fort Polk, Louisiana.  

On 13 April 1973, the applicant was declared AWOL from his unit as a result of not reporting for duty at Fort Polk, and he was dropped from the rolls as a deserted on 11 May 1973.  

On 27 April 1973, the United States Army Court of Military Review (USACMR), completed the appellate review by concluding that the guilty finding and sentence, as promulgated in Special Court-Martial Order Number 5, Headquarters 1st Cavalry Division, Fort Hood, Texas 76545, dated 23 January 1973, were correct in law and fact.  Based on this review, the USACMR finally affirmed the guilty finding and sentence pertaining to the applicant..  On 
26 November 1973, Special Court Martial Order Number 21, Headquarters, Fort Polk, Louisiana, based on the affirmation of USACMR, directed that the bad conduct discharge portion of the applicant’s sentence be duly executed,

On 10 December 1973, the applicant was apprehended by the Federal Bureau of Investigation (FBI), and on 12 December 1973 the applicant was returned to military control at the Personnel Control Facility, Fort Hood, Texas.  The evidence of record contains no indication that the applicant was experiencing medical problems at the time he was separated.  The record does indicate that he underwent a complete physical examination and was cleared for separation by competent medical authority on 18 December 1973.  

On 22 January 1974, the applicant was issued a bad conduct discharge by reason of court-martial.  At the time of his discharge the applicant had completed 1 year and 6 days of active duty, and had accrued 1079 days of time lost due to AWOL and confinement.

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 Board noted the applicant’s contention that his discharge should have been honorable and based on medical reasons.  However, the Board found no evidence of record or independent evidence submitted by the applicant to support these claims.  The record shows that the applicant was properly cleared for separation by competent medical authority. 

2.  The applicant’s trial by court-martial was warranted based on the gravity of the offense with which he was charged.  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.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  Title 10, United States Code, section1552, as amended does not permit any redress by this Board which would disturb the finality of a court-martial conviction.  The Board may change the discharge if clemency is appropriate.  Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.  The Board found no cause for clemency in this case.

3.  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. 

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

___rvo __  __ja ____  __mw ___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999014764	
SUFFIX		
RECON		
DATE BOARDED	1999/08/DD	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	1974/01/22	
DISCHARGE AUTHORITY	AR 635-200 C11	
DISCHARGE REASON	A68.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.00	
2.  807	144.9217/A92.17	
3.  855	144.9321/A93.21	
4.  361	144.0100/A01.00	
5.		
6.