MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            23 October 2003 
	DOCKET NUMBER:   AR2003089503

	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. Deyon D. Battle		Analyst	

The following members, a quorum, were present:

	Ms. Joann H. Langston		Chairperson	
	Ms. Margaret K. Patterson		Member	
	Mr. Arthur A. Omartian		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 bad conduct discharge (BCD) be upgraded to an honorable or a general discharge.

APPLICANT STATES:  That he was only 17 years old when he enlisted in the Army and that he was initially not accepted for enlistment due to medical reasons.  He further states that he enlisted so he could go to Vietnam; however, he was ordered to the hospital before he was allowed to complete his basic combat training (BCT).  He concludes by stating that at the time he enlisted he had many problems and that he had escaped from a boys school that was located in Vermont.

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

On 21 November 1968, he underwent a medical examination for the purpose of enlistment in the Army.  He was initially found to be unqualified for enlistment due acne on his back and shoulder and because he was fourteen pounds overweight. 

The applicant requested a waiver of his weight condition and on 23 December 1968, he was granted a waiver for enlistment in the Army.

On 23 December 1968, he enlisted in the Army at age 17, with parental consent, for 3 years, in the pay grade of E-1.  

The applicant was still in BCT when he absented himself without leave (AWOL) on 17 January 1969.  He remained absent until he returned to military control on 20 January 1969.

He went AWOL on 27 January 1969 and he remained absent until he returned to military control on 13 May 1969.

The applicant went AWOL again on 26 May 1969 and he was dropped from the rolls as a deserter on 1 September 1969.  He remained absent until he was apprehended by civil authorities and charged with two counts of assault with a dangerous weapon and 1 count of defacing property.  He was returned to military control on 3 March 1973 and he was placed in pretrial confinement.

On 8 May 1973, the applicant was convicted pursuant to his pleas by a general court-martial of being AWOL on the dates mentioned above.  He was sentenced to confinement at hard labor for 6 months and a BCD.  

On 5 June 1973, the convening authority approved the sentence as adjudged.  However, on 6 August 1973, the unexecuted portion of the sentence to confinement was remitted as modified by the action of The Judge Advocate General and he was restored to duty pending completion of appellate review.

On 9 August 1974, The Judge Advocate General affirmed the findings and the sentence as approved by the convening authority.  Accordingly, on 9 January 1975, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 11 as a result of a duly reviewed and affirmed general 
court-martial conviction.  He had completed 1 years, 5 month and 22 days of total active service and he was furnished a BCD.

On 16 January 1976, the applicant’s Report of Separation was corrected to reflect he was issued a Clemency Discharge pursuant to Presidential Proclamation Number 4313.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 of that regulation states, in pertinent part, that a member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed.

Title 10, United Stated Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that the Army Board for Correction of Military Records is not empowered to set aside a conviction.  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 modify 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.  The applicant was properly discharged pursuant to a sentence by a general court-martial conviction with no indication of any violations of any of his rights.

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 characterizes the misconduct for which the applicant was convicted.

3.  The Board has noted the applicant’s contentions.  However, he enlisted in the Army at age 17 with parental consent and he requested a waiver of his disqualifications and it was granted.  He failed to complete his basic training because he began to go AWOL 24 days after he enlisted in the Army.  The charges against him were too serious and his record of service is too undistinguished to warrant relief in his case.

4.  The applicant has submitted neither probative evidence nor a convincing argument in support of the request.

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

___jhl___  ___ao___  __mkp___  DENY APPLICATION

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

INDEX

CASE ID	AR2003089503	
SUFFIX		
RECON		
DATE BOARDED	2003/10/23	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	19750109	
DISCHARGE AUTHORITY	AR 635-200, CH 11	
DISCHARGE REASON	675/BAD CONDUCT DISCHARGE	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  678	144.6803/SERIOUS OFFENSE - BCD	
2.  708	144.7100/AWOL	
3.		
4.		
5.		
6.