MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            16 July 2002
	DOCKET NUMBER:   AR2002070692

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Donald P. Hupman		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 dishonorable discharge be upgraded to a more favorable discharge.

APPLICANT STATES:  In effect, that his age, alcohol and drug abuse problems were not taken into consideration when his punishment was considered and that in light of his accomplishments and the adjustments he has made since, his discharge should be upgraded.  He also states that his plea bargain agreement locked him into a dishonorable discharge.  In support of his application, he submits a copy of a court order approving his name change, three course completion certificates and a copy of a college transcript.

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

He enlisted in Houston, Texas, with parental consent on 4 December 1972, for a period of 2 years.  He completed his basic training at Fort Polk, Louisiana, and was transferred to Aberdeen Proving Ground, Maryland, to attend his advanced individual training (AIT).

On 2 April 1973, nonjudicial punishment (NJP) was imposed against him for kicking another soldier in the face with his boot.  His punishment consisted of a forfeiture of pay.

He completed his AIT and received orders transferring him to Fort Campbell, Kentucky, with a report date of 30 April 1973.  The applicant failed to report as ordered and was reported as absent without leave (AWOL) from 30 April until he was returned to military control on 22 May 1973.  NJP was imposed against him for the AWOL offense on 15 June 1973 and his punishment consisted of a reduction to the pay grade of E-1 (suspended for 3 months), a forfeiture of pay and extra duty for 30 days.

On 16 June 1973, he took an overdose of sinus pills (40 pills) in what was deemed a suicide attempt.  A line of duty investigation was conducted and a finding of not in the line of duty was made.

On 11 March 1974, he was convicted by a general court-martial of assaulting another soldier with a deadly weapon by shooting at him with a pistol.  He was sentenced, pursuant to a plea agreement, to be dishonorably discharged, to confinement at hard labor for 1 year and a forfeiture of all pay and allowances.

On 22 August 1974, as a result of consideration by the Army and Air Force Clemency and Parole Board, the applicant was denied restoration to duty but his sentence as pertained to confinement at hard labor was changed to remit any confinement in excess of 10 months.  He was placed on excess leave pending the appellate review of his case.

On 6 November 1974, the United States Army Court of Military Review affirmed the findings and sentence of the general court-martial convening authority, as modified by the Secretary of the Army (Remission of confinement in excess of 10 months).

Accordingly, he was dishonorably discharged pursuant to the sentence of a general court-martial on 4 February 1975.  He had served 1 year, 1 month and 26 days of total active service and had 365 days of lost time due to AWOL and confinement.

A review of the available records shows that the applicant was initially charged with attempted murder because he was high on drugs at the time he discharged his firearm at another soldier.  The bullet did not strike the soldier but went through his coat.  A mis-trial was declared and the applicant agreed to plead guilty to a lesser charge of assault because he had no intention of hurting anyone.  While not in his records, they indicate that NJP was imposed against him on three occasions, one for assault and two for AWOL.

Title 10, United States Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that the Board is not empowered to set aside a conviction.  Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.  

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.  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.

2.  The type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case.

3.  The applicant’s contentions and supporting documents have been noted by the Board.  However, they are not sufficiently mitigating to warrant relief when compared to the seriousness of his offense and his overall undistinguished record of service.

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

___dh___  ___fe ___  ___mm__  DENY APPLICATION

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

INDEX

CASE ID	AR2002070692	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/07/16	
TYPE OF DISCHARGE	DD	
DATE OF DISCHARGE	1975/02/04	
DISCHARGE AUTHORITY	GCM	
DISCHARGE REASON	GCM	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  675	144.6800/A68.00	
2.		
3.		
4.		
5.		
6.