MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:           30 March 2000                   
	DOCKET NUMBER:  AR1999028020

	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.

	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Ms. Barbara J. Ellis 		Chairperson	
	Mr. Hubert O. Fry Jr.		Member	
	Mr. Ernest W. Lutz Jr.		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 (DD) be upgraded to a general or an honorable discharge.

APPLICANT STATES:  In effect that he sincerely apologizes for his mistakes.  At the time of his discharge, he was young and he did not understand the consequences of his actions.  He served honorably in Japan, he wishes he had behaved in the same manner in Alaska.  However, he had just gotten married and the only thing that he could think of was going home.  

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

That on 11 May 1959, at age 17, he enlisted in the Regular Army with a declaration of parental consent signed by his mother.  He enlisted for 3 years in military occupational specialty 179.10 (Nike Hercules Crewman). 

On 21 October 1959, the applicant was assigned to Okinawa, Japan.  On 
27 September 1960, he was convicted by a summary court-martial of being absent without leave (AWOL) from 12 September 1960-18 September 1960.  His sentence included reduction from pay grade E-3 to pay grade E-2 and forfeiture of pay.

On 30 July 1960, the applicant’s request for hardship was denied.  
He was the sole provider for both his mother and his wife.  He requested a hardship discharge due to both of them having a heart condition.

On 10 December 1960, he was assigned to Alaska.  On 31 March 1961, he was convicted by a special court-martial of failure to go to his appointed place of duty at the prescribed time on 3, 4, 5, and 8 March 1961, and of willfully disobeying a lawful order on 13 March 1961.  His sentence included confinement at hard labor for three months, and forfeiture of pay.

On 13 September 1961, he was convicted by a special court-martial of being AWOL from his unit from 28 June-27 July 1961.  His sentence included forfeiture of pay and 4 months confinement at hard labor.

On 2 October 1961, he escaped from a work detail in an effort to get home to try to prevent his wife from divorcing him.  He stole a government truck and used it to get off the military installation.  He later abandoned the truck and stole a Chevrolet sedan from a civilian location.  The sedan was nearly out of gas; therefore, he drove it to a used car lot and pretended he want to trade it in for a newer car.  He then stole a Chevrolet Impala that he was allowed to test-drive.  

On 3 October 1961, civil authorities apprehended him and charged him with three counts of joy riding.  He was released to military control for prosecution.

On 1 November 1961, he was convicted by a general court-martial of wrongfully appropriating a 2 1/2 ton truck, valued at approximately $2,532.00, the property of the United States; of wrongfully appropriating a 1958 Chevrolet sedan, valued at approximately $1,000.00, the property of a civilian and; of stealing a 
1961 Chevrolet Impala, valued at approximately $3,245.00, the property of a licensed car dealer.  He was sentenced to forfeiture of all pay and allowances, confinement at hard labor for 5 years, and to be discharged with a DD.  On 
21 December 1962, he was transferred to Fort Leavenworth, Kansas to serve his sentence.

On 31 January 1962, the applicant petitioned the US Court of Military Appeals for a grant of review.  On 7 February 1962, he withdrew his appeal to the US Court of Military Appeals.

On 13 March 1962, the United States Court of Military Review approved the sentence and affirmed the findings.

On 7 April 1962, the applicant was discharged from the Army under the provisions of Army Regulation 635-204, for court-martial (other than desertion), with a DD.  He had completed 1 years, 10 months, and 11 days of active military service.  He also had 382 days lost time due to being AWOL and in confinement. 

However, he continued in confinement at Fort Leavenworth in a discharged status, but he was still subject to the Uniform Code of Military Justice.  He received periodic reviews for restoration to duty, clemency and parole.  Each time he was denied.  On 8 October 1962, he was released from confinement.

Evidence of record indicates the applicant applied to the Army Discharge 
Review Board in 1999, but his appeal was not within the purview of that Board to review.

Title 10, U.S. 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, 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.  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.  Therefore, the type of discharge directed and the reason for discharge was appropriate considering the facts of the case.  There has been no basis established to grant clemency in this case.

4.  The Board has taken into consideration the applicant’s contention that he was young, however, he met entrance qualification standards to include age.  Further, the Board found no evidence that he was any less mature than other soldiers of the same age who successfully completed their military service obligation.

5.  The applicant’s service prior to the offenses he committed does not sufficiently mitigate his misconduct to warrant clemency. 

6.	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

__bje____  ___hof__  ___ewl __  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999028020	
SUFFIX		
RECON	20000330	
DATE BOARDED		
TYPE OF DISCHARGE	(DD)	
DATE OF DISCHARGE	19620407	
DISCHARGE AUTHORITY	AR 635-204 	
DISCHARGE REASON	A67.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.6700	
2.		
3.		
4.		
5.		
6.