MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:             24 June 1999
	DOCKET NUMBER:    AR1999024992

	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. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Gary C. Miller		Member	
	Mr. Curtis L. Greenway		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 upgrade to an honorable discharge.

APPLICANT STATES:  In effect, that his discharge was too harsh considering the nature of the offense.

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

The applicant entered active duty on 15 September 1959 as a light weapons infantryman.  He continued to serve until he was honorably discharged on 21 September 1961 in order to reenlist.  He reenlisted on 22 September 1961.

He was convicted by a special court-martial on 10 January 1962 for being AWOL from 21 November 1961 to 16 December 1961 (25 days).  His sentence consisted of a forfeiture of pay and confinement at hard labor for 3 months (suspended).  The sentence was adjudged on 9 January 1962.

He was convicted by a summary court-martial on 30 April 1962 for being AWOL on 16 April 1962.  His sentence consisted of a forfeiture of pay and confinement at hard labor for 30 days (suspended).  The sentence was adjudged and approved on 30 April 1962.

He was convicted by a general court-martial on 10 May 1963 for being AWOL from 17 September 1962 to 19 September 1962 (3 days), from 30 September 1962 to 20 October 1962 (20 days) and from 3 November 1962 to 26 March 1963 (143 days).  His sentenced consisted of a forfeiture of all pay and allowances, confinement at hard labor for 1 year and 7 months, reduction to the lowest grade and a dishonorable discharge.  The sentence was adjudged and approved on 10 May 1963.

The applicant was confined in the United States Disciplinary Barracks, Fort Leavenworth, Kansas, pending completion of an appellate review. 

The Court of Military Review reviewed the applicant’s case and affirmed only so much of the sentence as provides for a forfeiture of all pay and allowances, confinement at hard labor for 1 year, reduction to the lowest grade and a dishonorable discharge.  

On 2 November 1963 the Secretary of the Army announced that clemency be disapproved on the sentence to confinement and that he applicant’s dishonorable discharge be changed to an undesirable discharge.

On 9 October 1963, the applicant was discharged from the Army pursuant to the sentence of a general court-martial and was issued an Undesirable Discharge Certificate.
Army Regulation 635-204, in effect, at the time, set forth the basic authority for 
the separation of enlisted personnel.  Paragraph 1(a) of the regulation provided, in pertinent part, that an enlisted person will be dishonorably discharged pursuant only to an approved sentence of a general court-martial imposing a dishonorable discharge.

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.  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.

2.  Notwithstanding the applicant’s contention that his discharge was too harsh, the Board noted that for these offenses a dishonorable discharge was appropriate; however, his dishonorable discharge was subsequently upgraded by the Secretary of the Army to an undesirable discharge.

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____  GCM___  CLG______  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999024992	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	199906124	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19631009	
DISCHARGE AUTHORITY	AR .635-204	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 191		
2.		
3.		
4.		
5.		
6.