MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            29 November 2001
	DOCKET NUMBER:   AR2001060478

	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. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. John P. Infante		Member	
	Mr. William D. Powers		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 his BCD should be upgraded because he deserves a chance and should be granted amnesty as others have been.  He indicates that his ability to serve was impaired based on his lacking a high school education when he entered the Army.  He further states that he suffers from a Post Traumatic Stress Disorder (PTSD) as a result of his Vietnam service and this has caused extensive pain to him and his family and this coupled with his overall record of honorable service should support an upgrade to his discharge. In support of his application, he provides a letter of support from the Associate Pastor of the Keys Memorial Word Center Church.

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

On 6 August 1968, the applicant entered the Army for 2 years, on 22 December 1969, he was discharged for the purpose of immediate reenlistment, and on 
23 December 1969, he immediately reenlisted for 3 years.  

The applicant was trained and served in military occupational specialty (MOS) 11B (Infantryman) and the highest rank he attained while serving on active duty was sergeant/E-5.  During his active duty tenure, the applicant earned the following awards:  Army Commendation Medal, National Defense Service Medal, Vietnam Service Medal with 2 bronze service stars, Republic of Vietnam Campaign Medal with 60 Device, and Meritorious Unit Citation.

The applicant’s record contains an extensive disciplinary history that includes his acceptance of non-judicial punishment (NJP) on the following three occasions for the offenses indicated:  22 July 1970, for being absent without leave (AWOL) from 17 July 1970 to 21 July 1970; 29 April 1971, for twice disobeying a lawful order and for  being in an off limits area; and 25 May 1971, for disobeying a lawful order and being disrespectful toward a commissioned officer.  In addition, on 11 November 1971, he was convicted by a summary court-martial of being AWOL from 21 October 1971 to 1 November 1971.  The resultant sentence included a reduction to specialist/E-4 and a forfeiture of $220.00.

On 24 May 1972, the applicant was convicted by a special court-martial (SPCM) of wrongfully impersonating a noncommissioned officer (NCO) and submitting a fraudulent claim in the amount of $1,285.20.  He was sentenced to confinement for 149 days, a forfeiture of $128.00 per month for 5 months, and a BCD.  On 
23 August 1972, the convening authority approved only so much of the sentence that provided for a BCD, which he ordered executed upon completion of the appellate review.

SPCM Orders Number 95, dated 22 December 1972, issued by Headquarters, 1st Cavalry Division, Fort Hood, Texas, directed the BCD portion of the applicant’s sentence to be executed based on the findings and sentence having been finally affirmed.  Accordingly, on 4 September 1973, the applicant was discharged after completing 4 years, 9 months, and 29 days of creditable active military service and having accrued a total of 92 days of time lost due to AWOL.

There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

Title 10 of the United States Code, section 1552, as amended, does not permit any redress by the Army Board of 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 his BCD should be upgraded because his ability to serve was impaired as a result of his lacking a high school education, the pain and suffering that the Vietnam war caused him and his family, his diagnosed PTSD, and his overall record of service.  However, the Board finds these factors 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.  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. 

3.  Notwithstanding the applicant’s contentions and desires, the Board finds that the type of discharge received by the applicant appropriately characterizes the misconduct for which he was convicted and accurately reflects his overall record of service.  Therefore, the Board concludes that 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

__RVO__   _ _JPI __  __WDP___  DENY APPLICATION

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

INDEX

CASE ID	AR2001060478	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/11/29	
TYPE OF DISCHARGE	(BCD,)	
DATE OF DISCHARGE	19730904	
DISCHARGE AUTHORITY	AR Chapter 11 .  .  .  .  .  	
DISCHARGE REASON	Special Court-Martial	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1 92.03.	105.00	
2. 93.07		
3. 93.21		
4.		
5.		
6.