MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           15 September 1999                  
	DOCKET NUMBER:   AR1999023484

	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. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Mr. James M. Alward		Chairperson	
	Mr. Ted S. Kanamine		Member	
	Ms. Kathleen A. Newman		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 dishonorable discharge be upgraded to a general or honorable discharge.

APPLICANT STATES:  In effect, that he should be awarded clemency based on the length of time elapsed since his discharge.

COUNSEL CONTENDS:  The American Legion, as counsel for the applicant, supports his request and rests on the evidence of record.  Counsel requested that the Board’s final decision reflect sound equitable principles consistent in law, regulation, policy and discretion.

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

The applicant’s military records show he entered active duty on 6 March 1961 as a medical specialist.  He continued to serve through a series of continuous reenlistments.

Beginning in December 1964, he began receiving numerous nonjudical punishments (NJP) for instances of destruction of private property, being absent from his appointed place of duty, failure to be at his appointed place of duty, disorderly conduct, drunk and disorderly, unlawfully carrying a concealed weapon, and for violation of a Federal regulation.  

He was convicted by a general court-martial on 4 June 1973 for murder.  His sentence consisted of reduction to the lowest grade, forfeiture of $200 per month
for 15 years, confinement at hard labor for 15 years and a dishonorable discharge.  The sentence was adjudged on 26 February 1973 and approved on 
4 June 1973.

On 24 January 1974, the Court of Military Review affirmed the findings and sentence as approved by the convening authority.

On 11 June 1974, the applicant was discharged from the Army pursuant to the sentence of a general court-martial and was issued a Dishonorable Discharge Certificate.  He had served 11 years, 6 months and 21 days of creditable service and had 620 days of lost time due to confinement.

Army Regulation 635-200, in effect, at the time, set forth the basic authority for
the separation of enlisted personnel.  Paragraph 11-1 of the regulation provided, in pertinent part, that an enlisted person will be given a dishonorably discharge pursuant only to an approved sentence of a general court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed.

The Table of Maximum Punishment in the Manual for Court-Martial, in effect at the time in question, shows the maximum punishment for murder was death as a court-martial may direct.

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 that he was convicted for murder and that for this offense,
the maximum punishment was death as a court-martial may direct. 

2.  The Board also noted the applicant’s contention that he should be awarded clemency based on the length of time elapsed since his discharge; however, this
is not a basis for upgrading his discharge particularly in view of the severity of this offense.

3.  Trial by court-martial was warranted by the gravity of the offense charged.  Conviction and discharge were effected in accordance with applicable law and regulation.

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 the aforementioned 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

JMA_____  TSK____  KAN_____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999023484	
SUFFIX		
RECON		
DATE BOARDED	19990915	
TYPE OF DISCHARGE	DD	
DATE OF DISCHARGE	19740611	
DISCHARGE AUTHORITY	AR 635-200, C 11-1	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.191/DD		
2.		
3.		
4.		
5.		
6.