MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            17 August 2000
	DOCKET NUMBER:   AR1999032689

	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. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Ms. Sherri V. Ward		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Linda D. Simmons		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 be upgraded. 

APPLICANT STATES:  In effect, that he is now 80 years old and had served time for his acts.  He claims that he felt disrespected as a man at the time but now wishes that his service could be recognized.

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

On 24 February 1942, he was inducted into the Army of the United States and he served until his separation on 13 November 1946.  

His record documents no acts of valor, significant achievement, or service warranting special recognition during his tenure on active duty.  However, there is an extensive disciplinary history recorded, which includes his trial and conviction by three summary and three special courts-martial prior to being convicted by the general court-martial which led to his discharge.

On 14 September 1942, the applicant was convicted by a summary court-martial of being absent without leave (AWOL) for 3 days and he was sentenced to 
25 days in confinement and a forfeiture of $25.00.  On 15 June 1943, he was again tried and convicted by a summary court-martial of being AWOL for 
19 days, which resulted in a sentence to forfeit $35.00.  

On 9 November 1943, the applicant was convicted by a special court-martial of being AWOL for 10 days and he was sentenced to 4 months of confinement at hard labor and a forfeiture of $33.00.  He was again convicted by a summary 
court-martial on 26 February 1944, of failing to obey an order from his commanding officer, which resulted in his being sentenced to 30 days of confinement at hard labor and a forfeiture of $33.00.

On 17 April 1944, the applicant was convicted by a special court-martial of escaping from confinement and he was sentenced to be restricted to the battalion area for 1 month and he was also convicted by a special court-martial on this same date of being AWOL for 12 days.  This resulted in a sentence of 4 months of confinement at hard labor and a forfeiture of $33.00 a month for 4 months.  

On 4 August 1945, the applicant was tried and convicted by a general 
court-martial for violations of Articles of War Numbers 64 and 65, based on his willful disobedience of an order from a superior officer and for his willful disobedience of an order from a superior noncommissioned officer.  He was sentenced to confinement at hard labor for 17 years; a forfeiture of all pay and allowances; and a dishonorable discharge.

On 13 November 1946, upon his release from confinement, the FSM was dishonorably discharged under the terms of his general court-martial sentence after completing 4 years, 4 months, and 5 days of active military service.  At the time of his discharge he had accrued a total of 889 days of time lost.  Of this total, 388 days were accrued prior to his normal expiration of term of service (ETS) and 501 days were accrued subsequent to his normal ETS.  

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 Board noted the applicant’s contention that he is now 80 years old and should receive credit for his service to his country.  However, this factor alone does not provide a sufficient basis for relief in this case. 

2.  The evidence of record clearly shows that the applicant was adjudged guilty by court-martial and that his sentence was approved by the convening authority. Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  The applicant’s trial by court-martial was warranted based on the gravity of the offenses with which he was charged and his conviction and discharge were effected in accordance with applicable regulations. 

3.  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.  The 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 entire record of service and any issues submitted, the Board finds no cause for clemency in this case.

4.  In order to justify correction of a military record an applicant must show to the satisfaction of the Board, or it must be 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

__sw____  ___lds  __  ___mm__  DENY APPLICATION

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

INDEX

CASE ID	AR1999032689	
SUFFIX		
RECON		
DATE BOARDED	2000/08/17	
TYPE OF DISCHARGE	DD	
DATE OF DISCHARGE	1946/11/13	
DISCHARGE AUTHORITY	GCMO #74	
DISCHARGE REASON	General Court-Martial Sentence 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000	
2.		
3.		
4.		
5.		
6.