MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            23 February 2000                  
	DOCKET NUMBER:    AR1999031965

	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:

	Mr. Raymond V. O’Connor Jr.		Chairperson	
	Ms. Elizabeth Buchanon		Member	
	Mr. Raymond J. Wagner		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 bad conduct discharge (BCD) be upgraded.

APPLICANT STATES:  In effect, that he should have been given a psychiatric evaluation to determine his mental state of mind.  

EVIDENCE OF RECORD:  The applicant’s military records were not available to this Board for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973.  It is believed that the applicant’s records were lost in that fire. 

The evidence of record does not include a copy of the court-martial proceedings, nor does it contain the specific facts and circumstances surrounding the events which led to the applicant’s court-martial.  However, the DD Form 214 does show that the applicant served as a member of the Army of the United States from 
11 December 1952 to 12 October 1955, at which time he was separated with a BCD as a result of a general court-martial conviction.  

The DD Form 214 also shows that at the time of his discharge the applicant had completed 1 year and 6 months of credible active service and had accrued 
307 days of time lost.  The evidence of record also contains evidence that the applicant was tried and convicted by a general court-martial on 21 January 
1955 and that the court-martial action and sentence were affirmed on 11 April 1955.  

The applicant’s medical records were not available to this Board for review.  However, there is no indication elsewhere in the record that would indicate that the applicant’s discharge was impacted by a medical or psychiatric condition.  In addition, procedurally, the applicant would have had to have been medically cleared for separation by competent medical authority prior to his separation.

Title 10, United States Code, Section 1552, as amended does not permit any redress by this Board which would disturb the finality of a court-martial conviction.  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.   

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’s record is void of facts and circumstances concerning events that led to his court-martial and BCD from the Army.  The Board did note that the record contained a properly constituted DD Form 214, authenticated by the applicant, which identifies the characterization of the applicant’s discharge, and the Board presumed government regularity in the court-martial and discharge processes.  

2.  The Board noted the applicant’s contention that he should have been given a psychiatric evaluation and medical discharge.  However, the Board concluded that this factor does not provide the Board a basis to provide relief or mitigate the applicant’s misconduct sufficiently to warrant an upgrade to his discharge.  

3.  In the absence of evidence to the contrary, the Board presumed that the applicant’s trial by court-martial was warranted and found no reason to doubt that the conviction and discharge were effected in accordance with applicable law and regulations, in effect at the time.  Therefore, the Board is convinced that the discharge appropriately characterizes the misconduct for which the applicant was convicted.  

4.  Title 10 of the United States Code, Section 1552, as amended does not permit any redress by this Board which would disturb the finality of a court-martial conviction.  This Board is only empowered to change the discharge 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 available information and any issues submitted, the Board found no cause for clemency 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 the aforementioned 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

___rvo___  __eb____  ___rjw__  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999031965	
SUFFIX		
RECON		
DATE BOARDED	2000/02/23	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	1955/04/12	
DISCHARGE AUTHORITY	AR 615-164 	
DISCHARGE REASON	Court-Martial Conviction	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 189	110.0000	
2.		
3.		
4.		
5.		
6.