MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           8 January 2002
	DOCKET NUMBER:   AR2001060899

	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	
	Mrs. Carolyn G. Wade		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful 		Chairperson	
	Ms. Terry L. Placek		Member	
	Mr. Roger W. Able		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:  That his bad conduct discharge (BCD) be upgraded to general, under honorable conditions in order to obtain Department of Veterans Affairs (VA) benefits.  The applicant requested a personal hearing in the Pittsburgh, Pennsylvania area, if possible.

APPLICANT STATES:  That he is requesting an upgrade of his BCD based on clemency.  He believes that his BCD was too harsh at the time and that, under today’s standards, he would have received a lesser degree of punishment.

In support of his application, the applicant submitted a statement in his own behalf, four character references, and a certificate of military service.

EVIDENCE OF RECORD:  The applicant's military records were lost or destroyed in the National Personnel Records Center fire of 1973.  Information herein was obtained from the applicant’s Certification of Military Service, dated 19 January 1984, and partial court-martial records.

The applicant enlisted in the Regular Army on 25 July 1950.  

On 23 December 1951, the applicant was convicted at summary court-martial of disobeying a lawful company order and missing bed checks.  He was sentenced to forfeiture of $15.00 pay.

On 9 February 1952, the applicant was convicted at summary court-martial of wrongfully operating a vehicle without permission.  He was sentenced to forfeiture of $40.00 pay.

On 18 April 1952, the applicant was convicted at summary court-martial of disobeying a lawful company order and missing bed checks.  He was sentenced to forfeiture of $35.00 pay.

While in Korea, court-martial charges were preferred against the applicant for two specifications of assaulting a noncommissioned officer (NCO), being insubordinate toward an NCO, and failing to obey lawful general orders.  He pled guilty to the charges.  He was tried and convicted by a general court-martial on 11 August 1952 and sentenced to confinement for 1 year and a BCD.  

On 22 January 1953, the applicant was discharged from the Army with a BCD.
He was credited with 2 years, 5 months, and 29 days of military service.

He was released from confinement on 7 May 1953.

Army Regulation 615-364, then in effect, set forth the conditions under which enlisted personnel could be discharged with a dishonorable or bad conduct discharge.  It stated that such discharged could only be issued pursuant to an approved sentence of a general or special court-martial.

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.  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.

2.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.  Under current standards, the applicant's misconduct could still result in a punitive discharge.

3.  The Board notes the applicant’s letter and other documents with his application outlining his successful accomplishments since separation from active duty.  The applicant is to be commended for his efforts.  However, these accomplishments do not provide the Board an adequate basis upon which to grant relief.  Further, the Board does not grant relief solely for the purpose of gaining or enhancing VA benefits.

4.  Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.  After a thorough review of the applicant’s record and all issues submitted, the Board found no cause for clemency.

5.  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___  ___RWA   ___TLP  _  DENY APPLICATION

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

INDEX

CASE ID	AR2001060899	
SUFFIX		
RECON		
DATE BOARDED	20020108	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	19530122	
DISCHARGE AUTHORITY	AR 635-200, c11	
DISCHARGE REASON	Result of general court-martial	
BOARD DECISION	DENY	
REVIEW AUTHORITY	Director	
ISSUES         1.	144.9405	
2.		
3.		
4.		
5.		
6.