MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            20 August 2002                  
	DOCKET NUMBER:   AR2002071187

	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. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Ms. Melinda M. Darby		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. Curtis L. Greenway		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.

APPLICANT STATES: That he should have been given the opportunity to reenlist so that he would have been able to receive an honorable discharge.  He completed more than 5 years of honorable service.  He was young and dumb and has regretted his actions every day since.  He has been a productive citizen all of his adult life.  He provides a copy of his DD Form 214 (Report of Separation from the Armed Forces of the United States), dated 28 May 1954 in support of his application. 

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 record of his trial by court-martial and from reconstructed personnel records.

On 11 July 1949, he enlisted in the Army for 3 years and was involuntarily extended for an additional year under Public Law Number 51.  He completed his required training and was awarded military occupational specialty 1824 (Cook).  He served overseas (Korea and Japan) for a period of 1 year, 7 months and     25 days.

On 29 August 1950, he was convicted by a Special Court Martial (SPCM) of being absent without leave (AWOL) for the periods 16 May to 13 June 1950 and 26 June to 12 July 1950.  His approved sentence was confinement at hard labor (CHL) for 80 days, forfeiture of $44 pay per month for 3 months and reduction to pay grade E-1.

On 16 November 1950, he was convicted by a Summary Court Martial (SCM) of being AWOL for the period 30 October to 15 November 1950.  His approved sentence was restriction for 30 days and forfeiture of $52 pay.

On 29 January 1951, he was convicted by a SPCM of being AWOL for the period 21 December 1950 to 17 January 1951.  His approved sentence was CHL for      2 months and 21 days and forfeiture of $45 pay per month for 3 months.

On 26 April 1952, he was convicted by a SCM of being AWOL on 15 April 1952.  His approved sentence included hard labor without confinement for 30 days and a forfeiture of $65 pay.

On 27 June 1952, he was convicted by a SPCM of being AWOL for the period  30 to 31 May 1952.  His approved sentence included CHL for 3 months and a forfeiture of $55 pay per month for 3 months.

On 8 June 1953, in consonance with his plea of guilty, he was convicted by SPCM of being AWOL for the period 17 to 20 May 1953.  His approved sentence included CHL for 6 months and forfeiture of $55 pay per month for 6 months.

On 3 March 1954, DD Form 502 (Prisoner Personnel History Record) shows that he left school at age 18 based on graduation.

On 15 March 1954, he was convicted by a General Court Martial (GCM) of being AWOL for the period 8 to 28 February 1954.  His approved sentence included a BCD, forfeiture of all pay and allowances and CHL for 3 months.  There were six previous convictions considered.  His BCD was suspended until completion of his CHL or completion of the appellant review.

On 30 March 1954, a U. S. Army Board of Review found the findings of guilty and the sentence as approved by proper authority correct in law and fact and affirmed the findings of guilty and sentence.

On 28 May 1954, he was discharged in pay grade E-1 under Army Regulation 615-364.  His DD Form 214 indicates that he had 3 years and 28 days of creditable service and 655 days of lost time.  

Army Regulation 615-364, then in effect, set the basic authority for the separation of enlisted personnel sentenced to a dishonorable or bad conduct discharge by a general court-martial, special court-martial, or military commission. 

The statutory authority under which this Board was created (Title 10, United States Code, section 1552, as amended) precludes any action by this Board, which would disturb the finality of a court-martial conviction.  Court-martial convictions stand as adjudged or modified by appeal through the judiciary process.  This Board is not empowered to change a discharge due to matters which should have been raised in the appellate process, 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 GCM was warranted by the gravity of the offense charged and the applicant’s previous courts-martial convictions.  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 applicant’s contentions that he has been a productive adult are noteworthy, but not sufficiently mitigating to warrant relief.  

3.  The applicant's contention that he was young and dumb at the time is not sufficiently mitigating to warrant relief. The Board notes that the applicant was   22 years of age at the time of his GCM.

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

_MMD___  _RWA___  _CLG___ DENY APPLICATION

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

INDEX

CASE ID	AR2002071187	
SUFFIX		
RECON		
DATE BOARDED	20020820	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144	
2.		
3.		
4.		
5.		
6.