MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           29 August 2002                 
	DOCKET NUMBER:   AR2002072845

	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. Margaret K. Patterson		Chairperson	
	Mr. Christopher J. Prosser		Member	
	Mr. Harry B. Oberg 		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 honorable.

APPLICANT STATES: That he was qualified for a hardship discharge but was unaware of how to apply for such a discharge.  His officers were unwilling to help him apply for a hardship discharge.  He was an uneducated young man and did not know the proper procedure to apply for a hardship discharge.  He indicates he was needed at home to care for his family; the United States was not at war and he believed he was needed more at home.  President Carter pardoned soldiers that deserted and left the country during the Vietnam War.  

In a separate statement, he indicates his father was from Greece and his mother was part American Indian and he has a very dark complexion and was the subject of many racist jokes and comments over the years.  He had to quit school in the 7th grade to work and help support the family.  He married a 15 year old in 1952 and had a daughter in 1953.  Both his mother and wife were dependant on him for everything.  In the Army, he indicates he was a victim of much harassment because of his lack of education and his dark complexion.  His mother wrote his commanding officer about a hardship discharge but he did not act on the request.  He has realized for a long time that he made a bad mistake in going AWOL (Absent without Leave), but the Korean War was over and his family needed him more than the Army.  He has had four heart bypasses and now has a pacemaker, on medication for his heart and seventy years old.  He is making this request on behalf of his children, grandchildren and great grand children.  He provides three letters of support

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 12 January 1954, he was inducted into the Army of the United States.  He completed his required training and was awarded military occupational specialty 1812 (Light Weapons Infantryman).

On 19 August 1954, he was convicted by a special court-martial of being AWOL for the period 3 May to 3 August 1954.  His sentence included confinement at hard labor (CHL) for 6 months and forfeiture of $25 pay per month for 6 months.

On 23 June 1955, in consonance with his plea, he was convicted by a general court-martial of being AWOL for the periods 7 December 1954 to 4 January 1955 and 3 February to 19 May 1955.  His sentence included a BCD, forfeiture of all pay and allowances and CHL for 9 months.  One previous conviction was considered.

On 20 July 1955, a US Army Board of Review, Office of The Judge Advocate General, 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 January 1956, he was discharged in pay grade E-1 under Army Regulation 615-364.

Army Regulation 615-364, then in effect, set for 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.  Rather it is only empowered to changed 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 offense charged and the applicant’s previous court-martial conviction.  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.  There is no basis for clemency in this case.

2.  There is nothing in the available records to support the applicant’s contention that he was eligible for a hardship discharge and was not provided assistance.  Additionally, there is nothing to support his claim of harassment.  

3.  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.

4.  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

_HBO___  _MKP___  __CJP__   DENY APPLICATION

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

INDEX

CASE ID	AR2002072845	
SUFFIX		
RECON		
DATE BOARDED	20020829	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES        1.	144	
2.		
3.		
4.		
5.		
6.