MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:           20 May 2003                   
	DOCKET NUMBER:   AR2003084173

	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. Luis Almodova		Analyst	

  The following members, a quorum, were present:

	Mr. Melvin H. Meyer		Chairperson	
	Ms. Deborah S. Jacobs		Member	
	Mr. Jose A. Martinez		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, reconsideration of his request for an upgrade of his Bad Conduct Discharge (BCD) to an Honorable Discharge.  There is evidence that the Board denied an earlier application for an upgrade of his discharge on 21 February 1956; however, neither the Memorandum of Consideration nor the case file are available; therefore, the case is reviewed de novo.

APPLICANT STATES:  In effect, that he broke his collar bone and shoulder while on duty in service and it is beginning to give him trouble.  With his bad conduct discharge, he does not get any benefits and he will need some benefits to be treated at the VA (Department of Veterans Affairs) Hospital.  The applicant provided no documentary evidence to support his contentions and application.

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 other records available to this Board.

According to these other records, the applicant enlisted in the Army on 30 March 1954 for 3 years.

On 9 August 1954, the applicant departed absent without leave (AWOL) from his unit, the 6th Student Company, Fort Eustis, Virginia, and remained absent until 14 August.  On 16 August 1954, he was found guilty by a summary court-martial of being AWOL and was sentenced to forfeit $40.00; to perform hard labor for 
10 days; and to be reduced to the rank and pay grade, Private, E-1.  The sentence was approved on 16 August 1954.

On 20 September 1954, the applicant underwent a mental evaluation.  According to the Certificate of Mental Responsibility, prepared following this evaluation, the applicant was deemed to be, so far free from mental defect, disease, or derangement as to be able to distinguish right from wrong, to adhere to the right, and possessed sufficient mental capacity to understand the nature of the proceedings against him and to intelligently conduct or cooperate in his defense.

On 12 October 1954, he was convicted by a General Court-Martial (GCM) of one charge and three specifications of violation of Article 121, of the Uniform Code of Military Justice, larceny.  He was sentenced to be confined at hard labor for one year, to be discharged from the service with a bad conduct discharge, and to forfeit all pay and allowances.  The sentence was adjudged on 12 October 1954.  The approving authority approved only so much of the sentence as provided for the bad conduct discharge, total forfeitures and confinement at hard labor for six 

months.  The applicant was to be confined in the Branch United States Disciplinary Barracks, Camp Gordon, Georgia.  The sentence was approved on 26 October 1954.

A Board of Review in the Office of The Judge Advocate General affirmed the sentence on 8 November 1954.

On 3 March 1955, Special Orders Number 35, paragraph 7, were published ordering the applicant to be released from confinement, on 12 March 1955, at the expiration of his sentence.  The applicant was discharged on 12 March 1955 in the rank and pay grade of Private, E-1, with a BCD, under the provisions of Army Regulation 615-364.  He was credited with 5 months and 18 days of active service with 176 days lost time due to AWOL and confinement.

Clemency and restoration to duty were denied the applicant on 24 January 1955 as evidenced in a letter from the Office of the Provost Marshal General.

This Board denied the applicant's request for an upgrade of his discharge on 
21 February 1956.  Although the Board proceedings are not available, there is evidence that the Board based its determination on the fact that insufficient evidence had been presented to indicate probable material error or injustice.

The statutory authority under which this Board was created, Title 10, United States Code, Section 1552, precludes any action by the Board, which would disturb the finality of a court-martial conviction; however, the Board may grant clemency as to the sentence in meritorious cases.

AR 615-364, then in effect, provided for the discharge of enlisted personnel pursuant to an approved sentence of a special or general court-martial imposing a bad conduct discharge.

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.  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.  

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 appropriately characterized the misconduct for which the applicant was convicted.

3.  There is no evidence of record, and the applicant has provided no corroborating evidence to support his contention that he broke his collarbone and shoulder while he was in service.  Notwithstanding the applicant’s alleged need for VA medical benefits, the Board does not normally grant an upgrade of a discharge so that former Army service members can gain access to benefits administered by the Department of Veteran's Affairs.

4.  The applicant's available military records and his application contain no matters upon which the Board may grant clemency, and in view of the foregoing, there is no basis for granting the applicant's request.

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

__mhm___  __dsj___  __jam___  DENY APPLICATION

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

INDEX

CASE ID	AR2003084173	
SUFFIX		
RECON		
DATE BOARDED	20030520	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	19550312	
DISCHARGE AUTHORITY	AR 615-364	
DISCHARGE REASON	A39.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.0000	
2.	144.6800	
3.	144.3900	
4.		
5.		
6.