MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           19 July 2001
	DOCKET NUMBER:   AR2001051836

	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. Mark D. Manning		Chairperson	
	Mr. Lestor Echols		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 bad conduct discharge (BCD) be upgraded to a general, under honorable conditions discharge (GD).  

APPLICANT STATES:  In effect, that he believes he is entitled to an upgrade to his discharge due to his having been discriminated against and being the victim of racial profiling by others.  He claims that the BCD also causes discrimination against him and is unjust to him personally. 

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

On 12 July 1971, he enlisted in the Regular Army (RA) for 3 years.  He completed basic training at Fort Ord, California and advanced individual training (AIT) at Fort Knox, Kentucky.  Upon completion of AIT he was awarded military occupational specialty (MOS) 11D (Armor Reconnaissance Specialist) and he was assigned to Germany.  

The applicant’s service record documents no acts of valor, significant achievement, or service warranting special recognition.  However, it does contain an extensive disciplinary history that includes his acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), and a record of his being tried and convicted by a summary court-martial (SCM) and by a special court-martial (SPCM).

On 16 September 1971, the applicant accepted NJP for failing to go to his appointed place of duty.  His punishment for this offense included a forfeiture of $25.00 and 14 days of restriction and extra duty. 

On 21 August 1973, the applicant was convicted by a SCM of being absent without leave (AWOL) from 1 to 10 July 1973.  His sentence included a forfeiture of $171.00 and a reduction to private/E-2.

On 4 April 1974, the applicant was tried and found guilty by a SPCM of violating Article 82 of the UCMJ by wrongfully possessing 825 grams of marijuana.  The resultant sentence included a BCD, forfeiture of $200.00 per month for 6 months, a  reduction to private/E-1, and confinement at hard labor for 6 months.  
On 5 June 1974, the sentence was approved by the SPCM convening authority and the record of court-martial was forwarded to The Judge Advocate General (TJAG) of the Army for review by a board of review. 

On 11 November 1974, the United States Army Court of Military Review found the SPCM findings of guilty and sentence as approved by proper authority in the applicant’s case correct in law and fact.  Having determined, on the basis of the entire record, that they should be approved, the United States Army Court of Military Review affirmed the guilty findings and the sentence in the applicant’s case.  

This affirmation was documented in SPCM Order Number 145, dated 
13 March 1975, issued by Headquarters, Fort Leavenworth, Kansas and in which, the sentence was modified to suspend the unexecuted portion of the confinement sentence and the remaining portion of the sentence, including the BCD, was ordered duly executed.  

Accordingly, on 31 March 1975, the applicant was separated with a BCD after completing 3 years, 2 months, and 22 days of creditable active military service and having had accrued a total of 178 of time lost due to AWOL and confinement.  

Title 10 of the United States Code, section 1552 as amended does not permit any redress by this Board of the finality of a court-martial conviction and empowers the Board to only change a discharge if clemency is determined to be appropriate. 

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 notes the contentions of the applicant that, in effect, his discharge was improper and unjust based on his having been discriminated against and being the victim of racial profiling but finds no evidence to support these allegations. 

2.  The Board takes any allegation of racial bias very seriously and took special note of the applicant’s claim of racial prejudice.  However, after a thorough review of the military record and lacking any independent evidence from the applicant, the Board finds no evidentiary basis to support his claims of discrimination and racial profiling. 

3.  The evidence clearly shows and the Board is satisfied that the applicant was afforded every legal right in connection with the SPCM proceedings against him and that his trial was warranted by the gravity of the offense for which he was charged.  

4.  The applicant’s SPCM conviction and the resultant BCD were effected in accordance with applicable law and regulations in effect at the time.  Further, the BCD portion of the sentence was not effected until he had been afforded all legal appeals and the findings and sentence were finally affirmed by a United States Army Court of Military Review.

5.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the punishment imposed.  

6.  Based on the seriousness of the offense for which the applicant was convicted and considering his undistinguished overall record of service,  the Board concludes that the resultant BCD was an appropriate punishment and that clemency is not warranted in this case. 

7.  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.

NOTE:  During the processing of this case the Board discovered an administrative error that should be corrected by the ARBA Support Team, St Louis upon the return of the applicant’s record.  The error as identified in the enclosed documents included an erroneous entry in an Insert Sheet (DA Form 20B) to the applicant’s record that noted a second SPCM conviction, adjudged 26 March 1973, that pertained to another soldier and the filing of the promulgating SPCM Order (SPCM Number 22) in the applicant’s MPRJ.  The ARBA Support Team should delete the inappropriate entry and remove the erroneously filed SPCM order and transfer it to the appropriate record. 

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__MDM__  __ LE  __  __GJW__  DENY APPLICATION

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

INDEX

CASE ID	AR2001051836	
SUFFIX		
RECON		
DATE BOARDED	2001/07/19	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	1975/03/31	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	SPCM	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000	
2.		
3.		
4.		
5.		
6.