MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:          6 March 2001 
	DOCKET NUMBER:  AR2000047400

	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. Carl W. S. Chun		Director	
	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Stanley Kelley		Chairperson	
	Mr. Ernest W. Lutz		Member	
	Mr. Harry B. Oberg		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 bad conduct discharge (BCD) be upgraded to a general discharge (GD) under honorable conditions. 

APPLICANT STATES:  In effect, that he believes that the BCD is unjust, because he did not mean to be disrespectful to anyone.  He submits a certificate of achievement that he received for completing the “Phase I-Addiction Group,” a certificate of accomplishment and a character reference letter.  The character reference states that the applicant has turned his life around since leaving the military; he has completed a substance abuse program and he has been sober for several years; he is gainfully employed and he has given his life to Christ.  

COUNSEL STATES:  In essence, that the applicant is requesting an upgrade of his discharge based on clemency.  He has overcome the problems that led to his discharge and that now he is a contributing member of his community.

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

That on 27 June 1973, he enlisted in the Regular Army for a period of 
3 years.  He served in both military occupational specialty (MOS) 36K (Field Wireman) and in MOS 11C (Indirect Fire Infantryman). 

In October 1973, he was assigned to Fort Carlson, Colorado.  Between May 1974 and July 1975, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice on seven different occasions.  On 2 May 1974, he accepted NJP for assaulting a noncommissioned officer (NCO) by striking him on the side of the head with a closed fist on
9 March 1974.  His punishment included reduction from pay grade E-3 to pay grade E-2 and forfeiture of pay.  The punishment was suspended.  

On 28 August 1974, he accepted NJP for dereliction of duty.  He was found sleeping instead of performing maintenance on a tracked vehicle on 21 August 1974.  His punishment included reduction from pay grade E-3 to pay grade E-2, forfeiture of pay and 7 days restriction and extra duty.  

On 15 September 1974, he accepted NJP for having in his possession an identification card that had been altered on 13 September 1974.  His punishment included forfeiture of pay, reduction from pay grade E-2 to pay grade E-1 and 
14 days extra duty.

On 20 December 1974, he accepted NJP for being disrespectful towards a commissioned officer on 13 December 1974 and for being absent from his unit on 16 December 1974.  His punishment included forfeiture of pay and 14 days extra duty and restriction.
On 19 March 1975, he accepted NJP for disobeying a lawful order from a commissioned officer.  His punishment included forfeiture of pay (suspended) and 7 days extra duty.  

On 16 April 1975, the applicant received a bar to reenlistment as a result of his unsatisfactory conduct, unsatisfactory performance of his duties and his unsatisfactory appearance.  The numerous NJPs that he had received were also cited. 

On 18 June 1975, he accepted NJP for sleeping while performing duties as a sentinel.  His punishment included forfeiture of pay and 7 days extra duty.

On 31 July 1975 he accepted NJP for disobeying a lawful order from an NCO.  His punishment is not a matter of record.

On 22 August 1975, the applicant was convicted by a special court-martial of stealing a .45 caliber pistol, of a value of approximately $50.00, the property of the United States Government.  He was sentenced to receive a BCD, confinement at hard labor for 6 months and to forfeit $229.00 pay per month for 6 months.

On 25 September 1975, the sentence was approved.  The applicant was to be confined at the US Army Disciplinary Barracks Fort Leavenworth, Kansas or, elsewhere as competent authority directed.  However, the execution of the BCD was suspended pending appellate review.

On 8 January 1976, the United States Court of Military Review affirmed the finding, and approved the sentence of the special court-martial.

On 16 January 1976, the applicant was released from confinement at the expiration of his sentence.  He was discharged on the same day under the provisions of chapter 11, Army Regulation 635-200, as a result of a court-martial (other) with a BCD.  His DD Form 214 (Report of Separation from Active Duty) shows that he had served 2 years, 1 month and 22 days of active military service.  He also had 148 days lost time due to being in confinement.  He was awarded the National Defense Service Medal and the Marksmanship Badge (Rifle).

Court-martial convictions stand as adjudged or modified by appeal through the judiciary process.  In accordance with Title 10, United States Code, Section 1552, the authority under which this Board acts, the ABCMR is not empowered to change a discharge due to matters which should have been raised in the appellate process, rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.

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 regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

2.  The Board acknowledges the applicant's successful transition to civilian life and noted his many accomplishments outlined in the documents with his application.  However, in review of the applicant’s entire service record, the Board found that these accomplishments did not overcome the reason for discharge and are not sufficiently mitigating to grant clemency in this case.    

3.  In view of the foregoing, there is no basis to grant 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

__sk____  __ewl ___  __hbo ___  DENY APPLICATION

					
		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000047400	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010306	
TYPE OF DISCHARGE	(BCD)	
DATE OF DISCHARGE	19760116	
DISCHARGE AUTHORITY	AR635-200, CH 11 	
REASON	A04.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.0400	
2.		
3.		
4.		
5.		
6.