MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           14 August 2001
	DOCKET NUMBER:   AR2001052763

	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. Walter T. Morrioson		Chairperson	
	Mr. Ronald E. Blakely		Member	
	Mr. Joe R. Schroeder		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.  

APPLICANT STATES:  In effect, that he enlisted for 2 years and had technically completed his service time honorably before he was convicted by a general court-martial (GCM) a week after the expiration of his term of service (ETS).  He claims that he was not properly advised of his rights and was persuaded and railroaded into a court-martial.  

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

On 30 April 1974, he enlisted in the Regular Army for 2 years.  He completed basic training at Fort Polk, Louisiana and advanced individual training (AIT) at Fort Sill, Oklahoma.  Upon completion of AIT he was awarded military occupational specialty (MOS) 82C (Artillery Survey Specialist) and was assigned to Fort Hood, Texas.

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) on two separate occasions and his trial and conviction by a GCM.

On 10 September 1974, the applicant accepted NJP for failing to go to his designated place of duty and his punishment for this offense included a suspended reduction to private/E-1 and 14 days of restriction and extra duty.

On 17 December 1975, the applicant accepted NJP for failing to go to his prescribed place of duty.  His punishment for this offense included a suspended reduction to private/E-2 and 7 days of extra duty.  On 21 January 1976, as a result of a subsequent incident of misconduct the suspended reduction was vacated and the applicant was reduced in rank accordingly.  

On 6 May 1976, the applicant was tried and found guilty by a GCM of two specifications of violating Article 130 of the UCMJ by housebreaking, two specifications of violating Article 121 of the UCMJ by committing larceny; and of violating Article 81 of the UCMJ by conspiring to commit larceny.  The resultant sentence included a reduction to private/E-1; DD; total forfeiture of all pay and allowances; and confinement at hard labor for 2 years. 

On 30 July 1976, the applicant’s GCM was promulgated on GCM Order Number 36, issued by Headquarters, 1st Cavalry Division, Fort Hood, Texas, and the sentence was approved by the GCM convening authority.  The record of 
court-martial was forwarded to The Judge Advocate General (TJAG) of the Army for review by the Army Court of Military Review.  Pending completion of the appellate review the applicant was ordered confined in the United States Disciplinary Barracks, Fort Leavenworth, Kansas.  

On 13 September 1976, the United States Army Court of Military Review after reviewing the record of trial affirmed the guilty findings and the sentence in the applicant’s case.  This affirmation was documented in GCM Order Number 304, dated 9 March 1977, issued by Headquarters, Fort Leavenworth, Kansas and the sentence was ordered duly executed.  

On 27 September 1977, the applicant was separated with a DD after completing 1 year, 11 months, and 28 days of creditable active military service, and having had accrued a total of 510 days of time lost subsequent to his normal ETS due to 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 noted the contentions of the applicant that he was not properly advised and railroaded into a court-martial but finds this claim lacks merit and is not sufficiently compelling to warrant clemency in this case. 

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

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

4.  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.  

5.  Based on the seriousness of the offenses for which the applicant was convicted, the Board concludes that the resultant DD was an appropriate punishment and even after considering his overall record of service, the Board still concludes that clemency is not warranted in this case. 

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

__WTM__  __REB__  __JRS__  DENY APPLICATION

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

INDEX

CASE ID	AR2001052763	
SUFFIX		
RECON		
DATE BOARDED	2001/08/14	
TYPE OF DISCHARGE	DD	
DATE OF DISCHARGE	1977/09/27	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	GCM 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000	
2.		
3.		
4.		
5.		
6.