MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            27 March 2001
	DOCKET NUMBER:   AR2000050458

	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	
	Mr. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Roger W. Able		Chairperson	
	Mr. Allen L. Raub		Member	
	Ms. Gail J. Wire		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 under other than honorable conditions (UOTHC) discharge be upgraded to a general, under honorable conditions discharge (GD). 

APPLICANT STATES:  In effect, that at the time of his being absent without leave (AWOL) his uncle had died and because he was his only relative he lost control.

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

On 7 April 1978, while serving as a specialist four (SP4) at Fort Lewis, Washington, the applicant reenlisted in the Regular Army for four years, which began the enlistment and period of service under review by this Board.

On 4 December 1978, the applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for wrongfully possessing marijuana, being AWOL for 18 days, breaking restriction, and being drunk and disorderly.  His punishment for these offenses included his reduction to the rank of private first class (PFC) and 30 days of confinement.

On 14 May 1979, the applicant was tried and convicted, by special court-martial (SPCM), of failure to go to his appointed place of duty, disrespect to a commissioned officer, disobeying a lawful command, disobeying a lawful order, committing assault and inflicting grievous bodily harm.  The resultant sentence included a forfeiture of $250.00 per month for three months, confinement at hard labor for three months, reduction to private/E-1 (PV1), and a bad conduct discharge.  

On 12 July 1979, the applicant’s SPCM was promulgated in SPCM Order Number 50, issued by Headquarters (HQs) 9th Infantry Division, Fort Lewis, Washington, dated 12 July 1979.  

On 18 December 1979, SPCM Order 74 was published by HQs, 7th Infantry Division and Fort Ord, California, which affirmed the SPCM action, pursuant to Article 86 of the UCMJ, and directed that the sentence be duly executed based on the provisions of Article 71(c) of the UCMJ having been finally complied with.  The order also noted that the portion of the applicant’s sentence concerning confinement at hard labor had been served. 

The applicant’s Official Military Personnel File (OMPF) contains no information or documentation that explains the gap between the 18 December 1979 affirmation of the SPCM BCD sentence and the 3 December 1980 UOTHC discharge received by applicant almost a year subsequent to the SPCM affirmation action.

A Department of Defense (DD) Form 214 (Certificate of Release or Discharge From Active Duty) on file confirms that on 3 December 1980, the applicant received an UOTHC discharge, under the provisions of chapter 11, Army Regulation 635-200 and SPCM Order 50, dated 12 July 1979, as a result of court-martial.  It also shows that at the time of his discharge he had completed a total of 2 years, 3 months, and 28 days of active military service and that he had accrued 119 days of time lost due to AWOL and confinement.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11, in effect at the time, established policy and procedures for separating members pursuant to an approved sentence of a general or special court-martial; and after completion of the appellate review and affirmation that the sentence ordered be duly executed.

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 the applicant’s contention that a death in the family should be considered a mitigating factor in his AWOL related misconduct.  However, after a careful examination of the character of his service during the entire period of enlistment under review, the Board finds this factor alone is not sufficient to warrant the requested relief. 

2.  The evidence of record confirms that his SPCM sentence was approved by the convening authority, properly upheld on appeal, and affirmed and ordered duly executed by proper authority. 

3.  By law and regulation, court-martial convictions stand as adjudged or modified by appeal through the judicial process.  This Board is empowered to change the discharge 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.  After a thorough review of the applicant’s entire service record and any issues submitted, the Board finds no cause for clemency and therefore no basis for granting the requested relief. 

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 this 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

__alr____  __gw____  ___ra ___  DENY APPLICATION

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

INDEX

CASE ID	AR2000050458	
SUFFIX		
RECON		
DATE BOARDED	2001/03/27	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1980/12/03	
DISCHARGE AUTHORITY	AR 635-200 C11	
DISCHARGE REASON	As a Result of Court-Martial	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000	
2.		
3.		
4.		
5.		
6.