MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           20 December 2001
	DOCKET NUMBER:   AR2001059748

	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. William Blakely		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. Roger Able		Member	
	Mr. Terry L. Placek		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 he completed the confinement required by his general court-martial sentence and now requests an upgrade of his discharge in order to enhance his employment opportunities.  He further states that it was his belief that his discharge would be automatically upgraded after a certain amount of time had passed. 

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

He continuously served on active duty for 2 years and 22 days, from 15 June 1953 until 2 September 1955, when he was separated with a BCD based on the sentence imposed as a result of his conviction by a general court-martial.  

The applicant was trained and served in military occupational specialty (MOS) 140 (Oiler Locomotive) and the highest rank he attained while serving on active duty was private.  During his active duty tenure, he was awarded the National Defense Service Medal and the Army of Occupation Medal (Germany).  His record documents no other acts of valor, significant achievement, or service warranting special recognition.  

However, his record does reveal a disciplinary history that includes his trial and conviction of striking a soldier in the face by a special court-martial on 17 June 1955.  The resultant sentence included a forfeiture of $60.00 pay for 4 months and 4 months of confinement that was suspended. 

On 7 July 1955, the applicant was convicted by a general court-martial (GCM) of the wrongful appropriation of a vehicle worth $1,734.00 and for leaving the scene of an accident without making his identity known.  The resultant sentence included a total forfeiture of pay, confinement for 1 year, and a dishonorable discharge (DD).  On 8 July 1955, the convening authority approved the sentence with a modification of the DD to a BCD and ordered all but the BCD portion to be executed.

GCM Orders Number 1073, dated 23 August 1955, issued by Headquarters, Branch United States Disciplinary Barracks, New Cumberland, Pennsylvania, directed the BCD portion of the applicant’s sentence be executed based on the findings and sentence having been finally affirmed.  Accordingly, on 2 September 1955, the applicant was discharged after completing 2 years and 22 days of creditable active military service and having accrued a total of 58 days of time lost due to confinement.

Title 10 of the United States Code, section 1552, as amended, does not permit any redress by the Army Board for Correction of Military Records (ABCMR) of the finality of a court-martial conviction and empowers the ABCMR 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 applicant’s contentions that he believed his discharge would automatically be upgraded after a given period of time and that based on his having served his time in confinement, his discharge should be upgraded in order to enhance his employment opportunities.  However, the Board finds these claims are not sufficiently mitigating to warrant an upgrade of his discharge. 

2.  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.  

3.  The evidence of record confirms that the applicant’s conviction and discharge were effected in accordance with applicable law and regulations in effect at the time and that his trial by court-martial was warranted by the gravity of the offenses with which he was charged. 

4.  Notwithstanding the applicant’s contentions and desires, the Board finds that the type of discharge appropriately characterizes the misconduct for which he was convicted and accurately reflects his overall record of service.  Therefore, it finds there is an insufficient basis to grant clemency in this case. 

5.  Further, the applicant is advised that there is no provision of law or regulation that mandates an automatic upgrade of a soldier’s discharge.  An upgrade of a soldier’s discharge may be warranted if the Board determines that the discharge was in error or unjust.  The Board found no evidence in the file that would satisfy this requirement.

6.  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.

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.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__LLS___  __RA___  __TLP___  DENY APPLICATION

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

INDEX

CASE ID	AR2001059748	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/12/20	
TYPE OF DISCHARGE	( BCD,)	
DATE OF DISCHARGE	1955/09/02	
DISCHARGE AUTHORITY	AR615-364 .  .  .  .  .  	
DISCHARGE REASON	Court-Martial	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	105.00	
2.		
3.		
4.		
5.		
6.