MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           17 July 2001
	DOCKET NUMBER:   AR2001056960

	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. Fred N. Eichorn		Chairperson	
	Ms. Shirley L. Powell		Member	
	Mr. Donald P. Hupman, Jr.		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.  

APPLICANT STATES:  In effect, that clemency is warranted because it is an injustice for him to continue to suffer the adverse consequences of a bad discharge; that under current standards he would not receive the type of discharge he did; his average conduct and efficiency ratings/behavior and proficiency marks were good; he received awards and decorations; he had combat service; his record of promotions showed he was generally a good soldier; he had a prior honorable discharge; he has been a good citizen since his discharge; his record of nonjudicial punishment (NJP) indicates only minor or isolated offenses; his absent without leave (AWOL) record indicates only minor offenses; his ability to serve was impaired by his youth and immaturity, low aptitude scores, level of education marital and family problems, financial problems; he faced racial discrimination; the punishment he received was too severe based on today’s standards and was too harsh; when he got back from overseas he could not adjust to stateside duty; and he applied or tried to apply for a compassionate reassignment but was unfairly denied or told to forget it.  

The applicant provides the enclosed expanded statement, which contains his full argument for the requested upgrade.  In it he contends, in effect, that he had prior periods of honorable service during the Berlin crisis and received three awards, which included the Vietnam Service Medal (VSM), National Defense Service Medal (NDSM), and Air Medal, which are not verified in the record.  His conduct and efficiency ratings were excellent and he had served in Vietnam for a year.  He claims that for his first six months he served as a cook, which at that time was the only job blacks were thought to be qualified for but later he served as a helicopter gunner, which he did well at and resulted in his promotion to specialist four (SP4).  He claims the unfairness began when he returned to the United States after his assignment in Vietnam and received NJP for an offense that in today’s military would result in his being counseled and a second NJP for going on an authorized leave to visit his critically ill grandmother that was later said to be unauthorized.  This resulted in his being charged with being AWOL and another AWOL period began when he received news that his grandmother had passed and he was refused leave to attend her funeral.  He claims these incidents began his problems and contends that the NJP he received as a result of this unfair treatment resulted in his having financial problems from which he could not recover.  He further claims that he saw no hope and he could not understand the unfairness of his chain of command but had he received counseling at the time he is sure it would have assisted him in making wise and acceptable decisions to deal with the loss of his grandmother and his indebtedness.  

The applicant stated that his record shows he was not a disciplinary problem throughout his military service and it was still not recommended that his 1 year sentence to hard labor be reduced and he be given another chance.  He points out that the Staff Judge Advocate (SJA) report reflects that he had average intelligence and had a full and fair understanding of the explanation of his rights as explained to him at the time.  He further suggests that the military failed him when he was not given his Miranda rights and allowed him to voluntarily plead guilty.  He also comments that he has been told his medical condition is terminal and he is now in constant pain that requires frequent trips for medical care but his discharge prevents his illness from being rated service connected.

The applicant also claims that since his discharge he has been an active volunteer with underprivileged children dealing with their alcohol and drug related problems when his health permits.  He continues to volunteer and also has a very successful marriage with a good family life.  He concludes by indicating that he made a terrible mistake in his youth and he still regrets the decisions he made that destroyed an otherwise beneficial military record.  He also stated that the record shows that the maximum punishment was given, counseling was not given, and pretrial assistance was not given and he would hope that today’s Board would provide clemency and assistance that was not provided him during this unfortunate period and he now begs for mercy.  In support of his application, he provides the enclosed expanded statement and a support letter from his wife.

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

On 7 April 1964, he entered the Regular Army on the enlistment under review for 3 years.  At the time of this enlistment, he had completed two prior periods of honorable active duty service as a member of the United States Army Reserve (USAR) totaling 1 year, 5 months, and 14 days.  

The applicant’s Enlisted Qualification Record (DA Form 20) confirms that on 
13 April 1964, he was awarded military occupational specialty 94B (Cook) and that the highest rank he was promoted to the rank of SP4 on 19 May 1965, which was the highest rank he attained while on active duty.  It also shows that he served in Vietnam from 12 October 1964 to 11 October 1965, and was awarded the Armed Forces Expeditionary Medal (AFEM) for this service.  The only other award listed in his record is the NDSM.  

The applicant’s service record documents no acts of valor or significant achievement; however, it does contain an extensive disciplinary history that includes his acceptance of NJP on two separate occasions and his trial and conviction by a general court-martial (GCM).  

On 7 March 1966, the applicant accepted NJP for failure to repair and for failing to obey a lawful order.  His punishment for these offenses included a forfeiture of $54.00 and 14 days of restriction.  

On 17 March 1966, the applicant accepted NJP for being AWOL from 10 March until 12 March 1966.  The resultant punishment included a reduction to the rank of private/E-2 and a forfeiture of $50.00.

On 27 October 1967, the applicant was tried and found guilty by a GCM of three specifications of violation of Article 86 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 27 May to 1 October 1966; 3 October 1966 to 
31 May 1967; and 28 July to 14 August 1967.  The resultant sentence included a BCD, forfeiture of all pay and allowances, and confinement at hard labor for 1 year.  

On 17 November 1967, the sentence was approved by the GCM 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.  Pending completion of the appellate review the applicant was confined in the United States Disciplinary Barracks, Fort Leavenworth, Kansas.  

On 2 February 1968, a United States Army Board of Review found the GCM 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 Board of Review affirmed the guilty findings and the sentence in the applicant’s case.  This affirmation was documented in GCM Order Number 308, dated 15 March 1968, issued by Headquarters, Fort Leavenworth, Kansas and the sentence was ordered duly executed.  

On 1 April 1968, at the completion of his confinement, the applicant was separated with a BCD after completing 2 years, 2 months, and 9 days of his current enlistment, a total of 3 years, 5 months, and 26 days of active military service, and having had accrued a total of 666 days 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 noted the contentions of the applicant that, in effect, his discharge was improper and unjust for various propriety and equity reasons he outlined in his application, his overall record of military service, and his post service conduct. However, the Board finds these claims are not sufficiently compelling to warrant clemency.  

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 it finds no evidentiary basis for this claim.  

3.  The applicant is further advised that his entitlement to medical benefits administered by the VA are determined by the policies and procedures of that agency.  Thus, any claim of entitlement to medical care based on a service connected disability should be addressed to the appropriate VA office.

4.  The evidence 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.  

5.  The applicant’s GCM 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 Board of Review.  

6.  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.  

7.  Based on the seriousness of the offenses for which the applicant was convicted during the enlistment under review, the Board concludes that the resultant BCD was an appropriate punishment.  Even after considering all of his issues, his overall record of service, and his post service accomplishments, the Board still concludes that clemency is not warranted in this case. 

8.  Finally, the Board also notes that the applicant was issued separation documents for two prior periods of active duty, in which, his service was characterized as honorable.  In the opinion of the Board, these documents adequately recognize his honorable service during those periods of active duty and an upgrade of the BCD under review is neither appropriate or necessary to acknowledge this prior honorable service.  

9.  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

__FNE __  __SLP   _  __DPH __  DENY APPLICATION

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

INDEX

CASE ID	AR2001056960	
SUFFIX		
RECON		
DATE BOARDED	2001/07/17	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	1968/04/01	
DISCHARGE AUTHORITY	AR 635-204	
DISCHARGE REASON	GCM	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000	
2.		
3.		
4.		
5.		
6.