MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           22 August 2002                   
	DOCKET NUMBER:   AR2002073427

	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. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Ms. Joann Langston  		Chairperson	
	Mr. Raymond V. O’Connor 		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:  In effect, that clemency in the form of an honorable discharge be granted.

APPLICANT STATES:  The applicant did not provide an explanation.  In support of his application, the applicant submits five character reference letters.

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

The applicant enlisted in the Regular Army on 3 August 1960 for a period of 
3 years.  On 18 August 1961, the applicant was released from military control by virtue of a void enlistment for being underage.  He enlisted in the South Carolina Army National Guard on 15 March 1962 for a period of 3 years.  The applicant was ordered to active duty for training on 5 April 1962 and was released from active duty on 4 October 1962 to complete his remaining obligation in the South Carolina Army National Guard.  On 16 November 1962, the applicant enlisted in the Regular Army for a period of 3 years.  He was honorably discharged on 
1 June 1964 for immediate reenlistment.  The applicant reenlisted on 2 June 1964 for a period of 6 years.    

On 14 January 1965, the applicant was convicted consistent with his plea by a special court-martial of being absent without leave (AWOL) from 31 July 1964 to 16 November 1964 and from 10 December 1964 to 13 December 1964.  He was sentenced to be reduced to E-1 and confined at hard labor for 6 months.  On 
18 January 1965, the convening authority approved the sentence.  On 2 March 1965, the unexecuted portion of the sentence to confinement at hard labor for 
6 months was suspended for 5 months.  On 20 August 1965, the suspended portion of the sentence to confinement was vacated.

On 9 September 1965, the applicant was convicted consistent with his plea by a general court-martial of one period of AWOL (from 29 March 1965 to 22 July 1965) which was terminated by apprehension.  He was sentenced to be dishonorably discharged, to forfeit all pay and allowances and to be confined at hard labor for 6 months.  On 23 September 1965, the convening authority approved only so much of the sentence as provides for a bad conduct discharge, forfeiture of all pay and allowances, and confinement at hard labor for 6 months.  

Headquarters Fort Jackson General Court-Martial Order Number 37, dated 
19 October 1976, indicates that the sentence was affirmed, the bad conduct discharge was ordered executed, but the unexecuted portion of the sentence pertaining to confinement at hard labor was remitted effective 27 October 1965.

Accordingly, the applicant was discharged with a Bad Conduct Discharge Certificate on 27 October 1965 under the provisions of Army Regulation 
635-204, for conviction by a general court-martial.  He had served 2 years, 
7 months and 14 days of total active service with 369 days lost due to AWOL and confinement.  

Army Regulation 635-204, in effect at that time, set forth the basic authority for separation of enlisted personnel with dishonorable and bad conduct discharges.  Paragraph 1b of this regulation states that an enlisted person will be discharged with a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial imposing a bad conduct discharge.  

Section 1552(f), Title 10, United States Code states that the ABCMR can only review records of court-martial and related administrative records to correct a record to accurately reflect action taken by reviewing authorities under the Uniform Code of Military Justice (UCMJ) or to take clemency action.

Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly 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 Board considered the character reference letters provided in support of the applicant’s claim.  However, good post service conduct alone is not a basis for upgrading a discharge.  

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations.  

3.  The applicant has failed to show through the evidence submitted with his application or the evidence of record that the actions taken in his case were in error or unjust.  

4.  The Board reviewed the applicant’s record of service which included one special court-martial conviction and one general court-martial conviction for a 115-day AWOL period which was terminated by apprehension and determined that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the Board determined that clemency in the form of an honorable discharge was not warranted in this case.  

5.  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.

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

JL_____  RVO_____  BJL_____  DENY APPLICATION

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

INDEX

CASE ID	AR2002073427	
SUFFIX		
RECON		
DATE BOARDED	20020822	
TYPE OF DISCHARGE	(BCD)	
DATE OF DISCHARGE	19651027	
DISCHARGE AUTHORITY	AR 635-204  	
DISCHARGE REASON	Conviction by a general court-martial	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.0200	
2.		
3.		
4.		
5.		
6.