MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            8 August 2002
	DOCKET NUMBER:   AR2002071577

	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. Raymond J. Wagner		Chairperson	
	Mr. Lester Echols		Member	
	Ms. Margaret V. Thompson		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 be upgraded to a general discharge.

APPLICANT STATES:  In effect, that he made a mistake at the time because he was young and did not understand the rules and laws of military life.  He goes on to state that at the time, he had gotten married after completing high school with hopes to be a family man with purpose.  He completed his training and was transferred to Germany.  He loved his assignment and his job and wanted his wife to join him; however, she would not join him and he did not understand why. He continues by stating that he began to get involved with alcohol and drugs because he could not understand why his wife would not join him.  His problems really bothered him and his chain of command would not allow him to go home.  His parents advised him to finish his time and not worry about what was going on at home, but it really bothered him.  When he completed his tour in Germany he was sent to Fort Benning, Georgia, and his problems with his wife continued.  He began to go home to Alabama and somehow get side-tracked and overstay his leave.  He further states that he is sorry for what he did and he would like the Board to know that he currently suffers from Diabetes and really needs the benefits of medical care that an upgrade of his discharge would provide.

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

He was born on 2 May 1957 and enlisted in Montgomery, Alabama, on 8 March 1976, for a period of 4 years, training as an infantryman, assignment to Europe and a cash enlistment bonus.  At the time of his enlistment, he indicated that he completed high school in June 1975 and was single.  He successfully completed his training and was transferred to Germany on 24 July 1976, for duty as an indirect fire infantryman.

On 3 July 1977, nonjudicial punishment (NJP) was imposed against him for stealing a stereo system from another soldier.  His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of pay, extra duty and restriction.

On 29 June 1978, NJP was imposed against him for failure to go to his place of duty.  His punishment consisted of restriction for 7 days.

On 18 July 1978, NJP was imposed against him for using obscene language towards a civilian woman.  His punishment consisted of a reduction to the pay grade of E-1 and a forfeiture of pay.

He departed Germany on 21 July 1978, en route to Fort Campbell, Kentucky, with a report date of 24 August 1978.  He failed to report as ordered and was reported as AWOL from 24 August 1978, until he was returned to military control on 7 September and charges were preferred against him for the absent without leave (AWOL) offense.
He was convicted by a summary court-martial at Fort Campbell on 5 October 1978, of being AWOL from 24 August through 6 September 1978.  He was sentenced to confinement at hard labor for 30 days, reduction to the pay grade of E-1 and a forfeiture of pay.  He was transferred to the Army Retraining Brigade at Fort Riley, Kansas, to serve his confinement.

On 21 November 1978, while still in the Retraining Brigade, NJP was imposed against him for missing bed check.  His punishment consisted of extra duty and restriction (suspended for 60 days).

He departed Fort Riley on 21 January 1979 for an assignment to Fort Benning, with a report date of 13 February 1979.  He failed to report as ordered and was reported as AWOL, effective 13 February 1979.  He remained absent until he surrendered to military authorities at Fort Benning on 20 March 1979.  He again departed AWOL from 13 April to 4 May 1979, 18 June to 26 June 1979, 2 July to 23 July 1979, 4 September to 7 September 1979 and 10 September to 11 September 1979. 

He was convicted by a special court-martial of the AWOL offenses on 15 October 1979 and was sentenced to confinement at hard labor for 3 months, a forfeiture of pay and a bad conduct discharge.  He was transferred to the Disciplinary Barracks at Fort Leavenworth, Kansas to serve his confinement.

On 31 January 1980, the United States Army Court of Military Review affirmed the findings and sentence as approved by the special court-martial convening authority.

Accordingly, he was discharged on 19 May 1980, under other than honorable conditions, pursuant to a duly reviewed and affirmed special court-martial conviction.  He had served 3 years, 7 months and 28 days of total active service and had 209 days of lost time due to AWOL and confinement. 

He applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 25 August 1981.  He asserted at that time that he had served his 3 months in prison and deserved to have his discharge upgraded because he had paid for his mistake.  The ADRB determined that he had been properly discharged pursuant to a duly constituted court-martial and voted unanimously to deny his application on 2 February 1983.

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 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

___mvt __  ___le ___  ___rjw __  DENY APPLICATION

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

INDEX

CASE ID	AR2002071577	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/08/08	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	1980/05/19	
DISCHARGE AUTHORITY	BCD	
DISCHARGE REASON	SPCM	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  685	144.6800/A68.00	
2.		
3.		
4.		
5.		
6.