MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           9 August 2001
	DOCKET NUMBER:   AR2001059672

	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:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Fred N. Eichorn		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 the findings of his summary 
court-martial be set aside and he be reinstated to the pay grade of E-4.  

APPLICANT STATES:  In effect, that he had received the date for the completion of his military service but was persuaded to extend his enlistment in order to gain time to become a citizen of the United States and during this period court-martial charges were wrongly brought against him.  He claims his official record will prove his contention. 

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

On 26 August 1974, he initially enlisted in the Regular Army for 3 years.  He successfully completed basic training at Fort Dix, New Jersey and advanced individual training (AIT) at Fort Jackson, South Carolina.  Upon completion of AIT he was awarded military occupational specialty 76D (Special Purpose Material Supply Specialist).

The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition during his active duty tenure.  However, it does contain a significant disciplinary history which includes his acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on four separate occasions and his trial and conviction by a summary court-martial. 

On 24 January 1975, the applicant accepted NJP for failing to go to his appointed place of duty, which resulted in his being punished with a forfeiture of $70.00 and 14 days of extra duty.

On 16 July 1975, the applicant accepted NJP for being disrespectful in language toward a superior noncommissioned officer in the execution of his duties.  His punishment for this offense included a forfeiture of $172.00 per month for 
2 months and 45 days of restriction and extra duty. 

On 16 July 1976, the applicant accepted NJP for being absent without leave (AWOL) for 3 days, which resulted in his being punished with a forfeiture of $50.00.

On 31 January 1977, he accepted NJP for being derelict in the performance of his duty, in that, he was sleeping while a sentinel of the guard and he was punished with 14 days of extra duty. 

On 9 June 1977, the applicant’s commander requested a waiver of 3 days of time lost due to AWOL in order to allow the applicant to reenlist.  On 29 June 1977, the appropriate authority denied the reenlistment waiver but did allow applicant to extend his enlistment for a period of 12 months. In his endorsement, the approval authority commented that the applicant should strive to obtain his high school diploma and retake the Army Classification Battery (ACB) tests to improve his scores.  In addition, he stated that the applicant should endeavor to complete the extension period without further disciplinary action.  On 19 July 1977, the applicant extended his enlistment for 6 months.

On 1 March 1978, the applicant tried and convicted by a summary court-martial of violating Articles 86 and 92 of the UCMJ by failing to go to his prescribed place of duty and disobeying a lawful order.  The resultant sentence included a reduction to private/E-1, a forfeiture of $270.00, and 30 days of restriction.  

The summary court-martial was promulgated in Summary Court-Martial Order Number 6, dated 1 March 1978, issued by Headquarters, 4th Battalion, 
10th Infantry, Fort William D. Davis, Canal Zone, in which, the convening authority approved the sentence and ordered it duly executed.

On 16 March 1978, the applicant was honorably released from active duty, in the rank and pay grade of private/E-1, after completing a total of 3 years, 6 months, and 18 days of creditable active military service.

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 take action on the sentence of a court-martial only for clemency purposes. 

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 applicant’s contention that he was wrongly charged and his summary court-martial findings and sentence should be set-aside and his grade restored.  However, the Board finds no evidence of record to support this claim and it concludes this issue is not sufficiently compelling to warrant clemency in this case. 

2.  The applicant’s summary court-martial conviction and the resultant sentence were effected in accordance with applicable law and regulations in effect at the time.  The sentence was approved by the proper convening authority and the Board finds no evidence of record that suggests that the applicant was wrongly charged.  

3.  Lacking any independent evidence from the applicant to support his claim that he was wrongly charged, the Board concludes the reduction portion of the approved summary court-martial sentence was not unduly harsh and therefore, it finds clemency is not warranted in this case. 

4.  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

__INW___  __FNE__  __GJW__  DENY APPLICATION

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

INDEX

CASE ID	AR2001059672	
SUFFIX		
RECON		
DATE BOARDED	2001/08/09	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  281	126.0400	
2.		
3.		
4.		
5.		
6.