MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            24 February 2000                  
	DOCKET NUMBER:    AR1999030773

	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. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Ms. Celia L. Adolphi 		Chairperson	
	Mr. James P. Huber		Member	
	Ms. Margaret V. Thompson 		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 would like to have a better discharge because at the time he was young and did not handle things well.  He is now very sorry for his actions.

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

On 12 June 1968, the applicant was inducted into the Army of the United States for 2 years.  He successfully completed basic training and advanced individual training (AIT) at Fort Ord, California.  Upon completion of AIT the applicant was awarded military occupational specialty (MOS) 11B (Infantryman) and he was assigned to Fort Benning, Georgia to attend the basic airborne course.

The highest rank the applicant attained while on active duty was private/E-2 and the record documents no acts of valor, significant achievement, or service warranting special recognition.  The record does contain an extensive AWOL related disciplinary history, and includes his trial and conviction by both a special and general court-martial.

On 14 February 1969, while still in airborne training, the applicant went AWOL from his unit and remained away for 41 days until 26 March 1969.  Court-martial charges were preferred against the applicant for this offense and on 11 April 1969, he was tried and convicted of this offense by special court-martial.  The resultant sentence was confinement at hard labor for 6 months and a forfeiture of $46.00 per month for 6 months.  

He served 71 days of confinement, between 16 April and 25 June 1969, at Fort Riley, Kansas, and was then assigned to Fort Bragg, North Carolina, where he arrived for duty in July 1969.  On 30 July 1969, he went AWOL from his unit and was immediately dropped from the rolls as a deserter.

The applicant remained away for 274 days until 30 April 1970, when he was returned to military control at the special processing detachment at Fort Benning, Georgia.  On 25 May 1970, the applicant was tried and convicted of this offense by general court-martial.  His sentence included a forfeiture of all pay and allowances, confinement at hard labor for 10 months, a reduction to the rank of private/E-1, and to be dishonorably discharged.

The applicant’s general court-martial was promulgated and the sentence approved in General Court-Martial Order (GCMO) Number 106, dated 23 July 1970, issued by Headquarters, U.S. Army Infantry Center and Fort Benning, which ordered that the applicant be confined in the United States Disciplinary Barracks at Fort Leavenworth, Kansas or elsewhere as competent authority may direct, pending completion of the appellate review.

On 28 December 1970, the United States Army Court of Military Review conducted an appellate examination of the case and found the findings of guilty and the sentence, as approved by the convening authority, correct in law and fact.  On 7 January 1971, GCMO Number 3, issued by Headquarters, U.S. Army Infantry Center and Fort Benning, finally affirmed the court-martial and ordered the DD be executed.  

Accordingly, on 8 January 1971 the was discharged with a DD after completing just 9 months and 27 days of credible active service and having had accrued 
638 days of time lost due to AWOL and confinement.

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 evidence of record clearly shows that the applicant was adjudged guilty by court-martial and that the sentence was approved by the convening authority. Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  This Board is empowered to change the discharge only if clemency is determined to be appropriate.  Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.  After a thorough review of the applicant’s record and any issues submitted, the Board found no cause for clemency in this case.

2.  The Board determined that trial by court-martial was warranted by the gravity of the offense 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.  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 the aforementioned requirement.

4.  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

__cla____  ___mvt___ ___jph__  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999030773	
SUFFIX		
RECON		
DATE BOARDED	2000/02/24	
TYPE OF DISCHARGE	DD	
DATE OF DISCHARGE	1971/01/08	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	Court-Martial	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 189	110.0000	
2.		
3.		
4.		
5.		
6.