MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           18 June 2002
	DOCKET NUMBER:   AR2002068221

	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:

	Ms. Karol A. Kennedy		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Allen L. Raub		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 dishonorable discharge (DD) be upgraded and his benefits be restored.

APPLICANT STATES:  In effect, that his discharge should be upgraded based upon his combat service and that he has carried the burden of having a DD long enough.

EVIDENCE OF RECORD:  The applicant's military records were lost or destroyed in a fire at the National Personnel Records Center (NPRC) fire in 1973.  The information herein was gleaned from a copy of a Certification of Military Service (NA Form 13038), dated 12 February 2001, published by the NPRC, National Archives and Records Administration (NARA) that was submitted along with the application.

The NA Form 13038 confirmed that the applicant entered the Regular Army on 
2O November 1952, and that he continuously served on active duty until 2 June 1954, at which time he was dishonorably discharged, in the rank of private.

On 26 October 1953, the applicant was convicted by a special court-martial for assault consummated by a battery and for twice failing to go his appointed place of duty.  He was sentenced to four months confinement and to forfeit $55.00 per month for four months.  The convening authority suspended the confinement for a period of four months.

On 30 March 1954, the applicant was found guilty by a general court-martial of being absent from leave (AWOL) from 9 November 1953 to 19 November 1953 and two specifications of robbery.  The resultant sentence included a forfeiture of all pay and allowances, a reduction to the rank and pay grade of private/E-1, confinement at hard labor for 10 years, and a DD.  On 2 June 1954, the convening authority approved the sentence and ordered all but the DD portion of the sentence to be executed.

On 6 August 1954, the United States Army Court of Military Review examined the record of trial and reduced the findings of specifications 1 and 2 of the additional charge from robbery to the lesser included offense of larceny of some value and affirmed only so much of the sentence as provides for a DD, total forfeitures of pay and allowances, and confinement at hard labor for 7 years.
The applicant petitioned the United States Court of Military Appeals for a new trial and it was denied on 8 November 1954.  

The unexecuted portion of the sentence pertaining to the DD was ordered executed and the applicant was separated accordingly.  

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 contentions of the applicant that his discharge should be upgraded based on his combat service and because he has suffered long enough with his DD.  However, the Board finds none of these factors are sufficiently mitigating to warrant the requested relief.  

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.  However, in this case, the Board finds the evidence of record confirms that the applicant’s conviction and discharge were effected in accordance with applicable law and regulations 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 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.

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

__KAK __  __MHM__  __ALR_ _  DENY APPLICATION

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

INDEX

CASE ID	AR200268221	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/06/18	
TYPE OF DISCHARGE	(DD)	
DATE OF DISCHARGE	19540602	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON	GCM	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	105.0100	
2.		
3.		
4.		
5.		
6.