MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           21 August 2001
	DOCKET NUMBER:   AR2000050208

	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. James E. Vick		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. William D. Barr		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 (BCD) be upgraded to a general discharge or to a fully honorable discharge. 

APPLICANT STATES:  In effect, that he has grown up and he sees life differently now.  He is getting older and he just does not want the BCD on his record.

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

That on 7 March 1966, he enlisted in the Regular Army for a period of 4 years.  He was assigned to Fort Polk, Louisiana for basic training.  He left his unit in an absent without leave (AWOL) status from 15-17 April 1966 and from 15-16 June 1966.  He was in civil confinement from 17-25 June 1966 for wrongfully appropriating another service member's vehicle.  He was also AWOL from 3 July 1966 until he was returned to Fort Leonard Wood, Missouri on 25 November 1966.

On 4 January 1967, the applicant was convicted by a special court-martial of two specifications of AWOL (15-25 June 1966 and 3 July-25 November 1966 -- there is no evidence that he ever received punishment for the 15-17 April 1966 period of AWOL), and of wrongfully appropriating a 1955 Ford automobile, of a value of about $150.00, the property of another service member, on 14 June 1966.  He was sentenced to confinement at hard labor for 6 months and forfeiture of $60.40 pay per month for 6 months.  On 9 January 1967, the sentence was approved. 

Upon his release from confinement, the applicant was returned to his unit on Fort Leonard Wood.  He immediately went AWOL again on 7 June 1967.  On 25 July 1967, he was returned to military control at the Post Stockade Fort Sill, Oklahoma.  On 1 September 1967, he was convicted by a special court-martial of being AWOL from 7June-25 July 1967; and for attempting to escape from lawful confinement (the Post Stockade at Fort Sill).  He was sentenced to confinement at hard labor for 6 months and forfeiture of $64.00 pay per month for 6 months.  On 7 September 1967, only that portion of the sentence that provided for confinement for 6 months and forfeiture of $60.00 pay per month for 3 months was approved.

The applicant departed Fort Sill in an AWOL status from 25 February-28 June 1968.  On 5 July 1968, he was returned to military control at the Special Processing Detachment, Fort Leonard Wood.  On 30 July 1968, he was once again convicted by a special court-martial of being AWOL from his unit, this time 

from 25 February-28 June 1968.  He was sentenced to confinement at hard labor for 6 months and forfeiture of $73.00 pay per month for 6 months.  On 1 August 1968, only that portion of the sentence that provided for confinement at hard labor for 6 months and forfeiture of $65.00 pay per month for 6 months was approved.

On 25 September 1968, while confined at the Fort Leonard Wood Stockade, the applicant was convicted by a general court-martial of participating in a riot.  He unlawfully assembled with five other prisoners for the purpose of executing a tumultuous demonstration against lawful authority and assisted in preventing stockade guard personnel from performing their duties.  He and his fellow rioters armed themselves with iron bars and boards, assaulted and threatened guard personnel, disobeyed the lawful orders of stockade personnel to cease and desist, released other prisoners from their cells and made noise.  He was sentenced to a dishonorable discharge (DD), to confinement at hard labor for 6 years, and forfeiture of all pay and allowances.  On 18 December 1968, only that portion of the sentence that provided for confinement at hard labor for 18 months, forfeiture of all pay and allowances, and a DD was approved.  However, the execution of the DD was suspended pending appellate review.

On 11 March 1969, the United States Court of Military Review, having  affirmed the finding and approved the sentence of the general court-martial, the sentence was ordered to be duly executed.

On 27 March 1969, a physical examination found the applicant physically qualified for separation.

On 29 March 1969, the applicant was denied clemency and parole.  He did not desire restoration to duty. 

On 31 March 1969, he was discharged under the provisions of chapter 11, Army Regulation 635-200, as a result of a court-martial with a DD.  However, he continued to serve in military confinement.

On 29 July 1969, he underwent a mental status evaluation by a professionally trained psychiatrist.  He was determined to have an inadequate personality that was chronic and minimal as manifested by lack of emotional stamina.  Also he was determined to have a tendency to use poor judgment under stress.  The psychiatrist recommended clemency, due to the adjustment he had made and due to the fact that he was not a chronic criminal offender.  

On 7 October 1969, the Army Clemency and Parole Board reconsidered the applicant's request for clemency and parole.  He was once again denied parole; however, he was granted clemency in that the unexecuted portion of his sentence to confinement was remitted.  His DD had already been voided in favor of a BCD earlier on 8 May 1969.

He was issued a new DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) showing that he was discharged on 31 March 1969, with a BCD under the provisions of chapter 11, Army Regulation 635-200, as a result of a court-martial.  He had served 3 month and 21 days of active military service and 972 of days lost time due to AWOL and confinement. 

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 Army Board for Correction of Military Records 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.  The applicant was a chronic offender.  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.

2.  The Board acknowledges the applicant's successful transition to civilian life.  However, in review of his entire service record, the Board found that his successful transition to civilian life was not sufficiently mitigating to overcome the reasons for discharge.

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

__jev__ _  ___bje __  __wdb___  DENY APPLICATION

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

INDEX

CASE ID	AR2000020508	
SUFFIX		
RECON	 	
DATE BOARDED	20010821	
TYPE OF DISCHARGE	(BCD)	
DATE OF DISCHARGE	19690331	
DISCHARGE AUTHORITY	AR635-200, CH 11 	
REASON	A04.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.0400	
2.		
3.		
4.		
5.		
6.