MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           12 September 2002                   
	DOCKET NUMBER:   AR2002070194

	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. Paul Wright		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Donald P. Hupman, Jr.		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 to a General Discharge  (GD).

APPLICANT STATES:  That he readily admits committing the offense for which he was court-martialed and sentenced to receive a BCD; there is no error.  He seeks an upgrade based on clemency and the injustice of suffering an overly harsh punishment for 28 years.  He states that he has been a productive, law-abiding citizen since his separation from the Army.  He also states that much of his service prior to the offense for which he was separated was good, and he explains that he went AWOL (absent without leave) because his wife was pregnant and needed him and his company commander would not authorize leave.

In support of his application, the applicant, a custodian at a public school, submits:  numerous letters of support from the principal and staff of his school; a letter from a properties management company to which he provides janitorial services; and a copy of his Record of Trial (ROT).

COUNSEL CONTENDS:  Counsel supports the applicant's request for upgrade based on the applicant's statement that his record was free of any misconduct up to the point of his being AWOL.  In addition, the applicant has maintained steady employment over the years and is a respected and contributing member of his community.

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

On 6 September 1972, the applicant was inducted into the Army of the United States for a period of 2 years.  He successfully completed basic combat training.

On 5 April 1973, the applicant, while still undergoing advanced individual training, was convicted by a Special Court-Martial for being AWOL from 5 February 1973 through 16 March 1973.  His sentence included forfeiture of $100.00 pay per month for 2 months.

The applicant successfully completed advanced individual training and was awarded military occupational specialty (MOS) 13A10, Field Artillery Basic.  He subsequently was reassigned to Fort Hood, Texas with duty as an artilleryman in Battery D, 1st Battalion, 6th Field Artillery, 1st Cavalry Division.

On 15 October 1973, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code Military Justice, for being AWOL from 0700-1400 hours on 4 September 1973.  Punishment included forfeiture of $50.00, suspended for 60 days, and 14 days of extra duty.

On 11 June 1974, a separation physical found the applicant qualified for separation.

On 16 July 1974, the applicant was convicted by a Special Court-Martial for being AWOL from 7 January through 17 May 1974.  His sentence included a BCD, confinement at hard labor for 2 months, forfeiture of $100.00 pay per month for 2 months, and reduction to pay grade E-1.  On 13 September 1974, the U.S. Army Court of Military Review affirmed the sentence.  Subsequently, on 21 October 1974, that portion of the sentence dealing with the forfeiture of pay was remitted.

On 4 November 1974, the applicant was separated with a BCD pursuant to his sentence by a special court-martial.  His DD Form 214 (Report of Separation from Active Duty) shows he was credited with 1 year, 6 months, and 25 days of active Federal service and he had 220 days of lost time.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, paragraph 3-11 provides that a soldier will be given a BCD pursuant only to an approved sentence of a general court-martial or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

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 carefully reviewed all of the applicant's entire record.  The applicant's contention that much of his service was good is without merit.  It was noted that he had 2 prior disciplinary actions (a special court-martial and an NJP) for the same offense of AWOL.

2.  The Board accepts that the applicant may have had marital/family problems; however, there were other avenues [his chain of command or his chaplain] available to him through which he could have sought assistance.  He did not have to resort to going AWOL and his wife's pregnancy did not excuse the offense.

3.  While the Board has taken cognizance of the applicant's good post-service conduct, this factor is not so meritorious as to warrant the relief requested.

4.  The evidence of record clearly shows that the applicant was adjudged guilty by court-martial and that the convening authority approved the sentence.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed by the court-martial.  After a thorough review of the applicant’s record and any issues submitted, the Board finds no reason for clemency.

5.  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.

6.  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

__jns___  __dph___  __wdp___  DENY APPLICATION

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

INDEX

CASE ID	AR2002070194	
SUFFIX		
RECON		
DATE BOARDED	20020912	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	19741104	
DISCHARGE AUTHORITY	AR 635-200, Chap 3.  .  .  .  .  	
DISCHARGE REASON	A68.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	105.0100	
2.	144.0047	
3.	144.6800	
4.	144.7100	
5.		
6.