MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            26 September 2002                  
	DOCKET NUMBER:   AR2002072238

	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:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Ms. Karen Y. Fletcher		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 (DD) be upgraded to general under honorable conditions or honorable.

APPLICANT STATES: That his attorney advised him to plead guilty under a pre-trial agreement and he did.  He indicates he had no intention of deserting, he was just running away from life’s problems.  He still had his ID Card when he was apprehended.

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

During the period 31 January 1955 to 13 December 1957, he served on active duty.

On 11 March 1958, he reenlisted in the Army.

On 10 April 1963, a psychiatric evaluation cleared him for court-martial purposes. 

On 16 May 1963, he was convicted by a General Court-Martial (GCM) of desertion.  He was absent from on or about 29 December 1960 to on or about   24 January 1963, when he was apprehended.  His approved sentence included a DD, confinement at hard labor (CHL) for 4 months, forfeiture of $43.00 pay per month for 4 months, and reduction to pay grade E-1.

On 12 July 1963, the Army Board of Review, Office of The Judge Advocate General, found the findings of guilty and the sentence correct in law and fact and affirmed the findings of guilty and the sentence.

On 30 July 1963, a physical examination cleared the applicant for separation.

On 12 August 1968, he was discharged with a DD based on the sentence of a GCM.  His Report of Separation indicates he had 3 years and 4 days of creditable service and 880 days of lost time for this period of service.

Army Regulation 635-204, then in effect, directed that an enlisted person would be discharged with a DD pursuant only to an approved sentence of a GCM.

Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, United States code, Section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records 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.

Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 3-7 provides that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be inappropriate.

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 discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with the applicant's overall record of military service.  His DD was proper and he is not entitled to an upgrade to a general discharge, under honorable conditions, or to an honorable discharge. 

2.  There is no evidence in the available records to demonstrate that the applicant was the victim of legal malpractice or that he was denied his rights in the matter.

3.  The applicant has also not convinced the Board that he is entitled to clemency.

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

_RJW___  _KYF___ __RVO___ DENY APPLICATION

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

INDEX

CASE ID	AR2002072238	
SUFFIX		
RECON		
DATE BOARDED	20020926	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110	
2.		
3.		
4.		
5.		
6.