MEMORANDUM OF CONSIDERATION

		IN THE CASE OF

		BOARD DATE:            16 September 2003                  
		DOCKET NUMBER:    AR2003090342

	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. William Blakely		Analyst	

  The following members, a quorum, were present:
	Mr. Fred N. Eichorn		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Karen A. Heinz	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 dishonorable discharge (DD) be upgraded.

APPLICANT STATES:  In effect, that he wants the Board to review his discharge based upon his military personnel file and grant him an upgrade.

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

On 30 June 1969, the applicant entered the Army for a period of 3 years.  He was trained and served in military occupational specialty (MOS) 11D (Armor Reconnaissance Specialist) and the highest rank he attained while serving on active duty was private first class/E-3 (PFC/E-3).  

The applicant’s military records shows that he served in the Republic of Vietnam (RVN) from 11 August 1970 to 10 August 1971 and that he earned the following awards during his tenure on active duty:  National Defense Service Medal; Vietnam Service Medal; RVN Campaign Medal with 60 Device; Combat Infantryman Badge; Parachutist Badge; and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  

The applicant’s record reveals a disciplinary history that included his acceptance of nonjudicial punishment (NJP) on the following 3 separate occasions for the offenses indicated:  6 March 1970, for failure to go to his appointed place of duty; 29 May 1970, for being derelict in the performance of his duties; and 7 January 1971, for twice being in an off-limits area. 

On 26 May 1971, a general court-martial (GCM) convicted the applicant of violating Article 134 of the Uniform Code of Military Justice (UCMJ), by assaulting a commissioned officer by detonating a fragmentation hand grenade under the building in which the officer was sleeping, with the intent to commit murder.  The resultant sentence included confinement at hard labor for nine years, forfeiture of all pay and allowances, reduction to the grade of private E-1 (PV1); and a DD.  

On 4 October 1971, in GCM Orders Number 11, issued by Headquarters, United States Army Forces, Military Region 2, APO San Francisco, California, the GCM convening authority approved the sentence and ordered all but the DD portion of the sentence to be executed.  

On 20 June 1973, in GCM Order Number 540, issued by Headquarters, United States Disciplinary Barracks, Fort Leavenworth, Kansas, the sentence having been affirmed pursuant to Article 66, and Article 71(c) of the UCMJ having been complied with, the DD portion of the applicant’s sentence was ordered to be executed.  

On 26 July 1973, the applicant received a DD.  The separation document issued to him on the date of his discharge confirms that at that time he had completed a total of 1 year, 10 months, and 27 days of creditable active military service, and he had accrued 761 days of time lost.  On 17 August 1973, the Army and Air Force Clemency and Parole Board remitted the sentence to confinement in excess of seven years.  On 30 November 1973, he was released on parole.  On 7 January 1975, the Army and Air Force Clemency Parole Board remitted the sentence to confinement in excess of six years.

Title 10 of the United States Code, section 1552 as amended does not permit any redress by the Army Board of Correction of Military Records (ABCMR) of the finality of a court-martial conviction and empowers the ABCMR to only change a discharge if clemency is determined to be appropriate.

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.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the punishment imposed.  

2.  The evidence of record confirms that the applicant’s conviction and discharge were effected in accordance with applicable law and regulations in effect at the time, and that his trial by court-martial was warranted by the gravity of the offenses with which he was charged.

3.  The Board finds that the type of discharge appropriately characterizes the misconduct for which he was convicted and accurately reflects his overall record of service.  Therefore, it finds there is an insufficient basis to grant clemency in this case.

4.  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.

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

__FE__  ___KH__  ___MM_ _     DENY APPLICATION

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

INDEX

CASE ID	AR2003090342	
SUFFIX		
RECON		
DATE BOARDED		
TYPE OF DISCHARGE	 DD	
DATE OF DISCHARGE	1973/07/26	
DISCHARGE AUTHORITY	AR 635-100 1.  .  .  .  .  	
DISCHARGE REASON	Trial by CM	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 31	105.0110	
2.		
3.		
4.		
5.		
6.