MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:           29 October 2002
	DOCKET NUMBER:   AR2002073323

	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	
	Ms. Antoinette Farley		Analyst	

  The following members, a quorum, were present:

	Ms. Karol A. Kennedy		Chairperson	
	Mr. Thomas A. Pagan		Member	
	Ms. Barbara J. Lutz		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 the deceased former service member’s (FSM’s) bad conduct discharge (BCD) be upgraded to a general discharge under honorable conditions.

APPLICANT STATES:  That she, the FSM’s sister, has given permission to the Tribe’s Yankton Sioux Veterans Officer Representative to work in her brother’s behalf.  

COUNSEL CONTENDS:  The FSM is now deceased and had served over 3 ½ years of his 4 year enlistment in the Army from 10 November 1953 to 5 May 1957.  In view of the circumstances the FSM’s family only wishes that a tombstone and burial flag be provided.  In support of the FSM’s claim a copy of his Certificate of Military Service and a copy of his Certificate of Death is provided.

EVIDENCE OF RECORD:  The FSM’s military records were lost or destroyed in the National Personnel Records Center fire of 1973.  Information herein was obtained from partial court-martial records.  These records show that he enlisted at the age of 17, in the Army on or about 10 November 1953 for 3 years.  His GT Score was 69.  He completed basic and advanced individual training at Fort Riley, Kansas.  He was then transferred to a Quartermaster unit in Korea for 16 months.  He worked as a security guard, guarding supplies.  

The FSM also received two summary court-martial convictions, while in Korea.  On 
18 September 1954, he was convicted by a summary court-martial of being in an 
off limits area.  His sentence included restriction for 30 days and forfeiture of 
$25.00 pay.  On 21 March 1955, the FSM received a second summary court-martial of loitering on post.  His sentence included restriction for 30 days and forfeiture of $45.00. 

The FSM’s record show that he then returned from overseas and was assigned to the 720th Military Police Company, Fort Hood, Texas, for approximately five months. Ultimately being reassigned to 553rd Armored Infantry Battalion, 4th Armored Division, Fort Hood, Texas.

On 17 July 1956, the applicant was convicted by a general court-martial (GCM) of one specification for violation of the Uniform Code of Military Justice, Article 86 of being AWOL from 21 February 1956 to 11 June 1956.  He was sentenced to a forfeiture of all pay and allowances, confinement at hard labor for 1 year and a BCD.  

On 23 July 1956, the convening authority affirmed the sentence subject to appellate review of the discharge action.  It was also determined that the FSM would be confined in the United States Disciplinary Barracks, Fort Leavenworth, Kansas.  

On 10 August 1956, the Office of The Judge Advocate General, Board of Review affirmed the finding of guilty and the sentence.  

On 17 August 1956, the FSM after consulting with counsel and being informed that the sentence was affirmed, waived his right to petition the Court of Military Appeals for a grant of review.

On 20 August 1956, General Court-Martial Order 632 was issued by Headquarters, Fort Leavenworth, Kansas, announcing that the sentence of forfeiture of all pay and allowances, confinement at hard labor for 1 year and a BCD imposed against the applicant on 23 July 1956, had been affirmed, and that Article 71c, UCMJ, having been complied with, ordered the BCD was to be duly executed.  

On 25 January 1957, the Office of The Provost Marshall General, Washington, D.C. denied the FSM request for restoration to duty, release on parole and clemency.

On 5 May 1957, the FSM was discharged, with a BCD.  He had completed 
3 years, 3 months and 26 days of active military service.  He had 116 days of lost time from 21 February 1956 to 11 June 1956 for being AWOL and 365 days due to confinement.  The highest pay grade he attained was E-2.

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 ABCMR 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 sentence 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.  The FSM’s service records were destroyed in the National Personnel Records Center fire of 1973.  Court-martial records indicate that the applicant was absent without leave from his unit from 21 February 1956 until 11 June 1956.

2.  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, given the time and circumstances, appropriately characterizes the misconduct for which the applicant was convicted.

3.  In order to justify correction of a military record, the FSM representative must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The FSM’s representative and family has failed to submit evidence that would satisfy this requirement.  In view of the foregoing, there is no basis for granting the applicant's request.

4.  The Board is empathetic with the family, but concludes that the FSM's less than honorable record of service does not provide a basis for an upgrade of his discharge.  However, the family may still work with the DVA concerning veteran’s benefits or burial benefits.

5.  Determination to entitlement of the GI Bill and other veteran benefits does not rest with this Board, rather it rests with the Department of Veterans Affairs.  The applicant is advised to contact that agency on these matters.

6.  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

___KAK _  ___TAP _  ___BJL__  DENY APPLICATION

Carl W. S. ChunDirector, Army Boards for Correctionof military Records

INDEX

CASE ID	AR2002073323	
SUFFIX		
RECON		
DATE BOARDED	2002.10.29	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	AR 635-200 CH3	
DISCHARGE REASON	A68.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	A123.01	
2.	A110.02 	
3.		
4.		
5.		
6.