MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:            7 May 2002                  
	DOCKET NUMBER:   AR2001063281

	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. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler 		Chairperson	
	Mr. Kenneth W. Lapin 		Member	
	Mr. John T. Meixell		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 discharge be upgraded to something other than dishonorable.

APPLICANT STATES: That he entered the Army at age 17.  He was reassigned to Germany where he fell in with a crowd of young men who were not of the best of character.  He admits to committing all the acts for which he was convicted by a general court-martial; however, it was not his fault or he was not involved in the actual incidents.  He provides a comprehensive account of his life and problems after the Army.  He wishes to regain his rights as a reputable citizen and have this black mark off his record.  He provides a separate statement and copies of military documents, which are a part of his military records, and certificates from his post-service era showing he attained his high school equivalency certificate, that he completed the entry level Tractor-Trailer Truck Driver Training Program, and a 2 hour Asbestos Awareness Course. 

The applicant asserts that he merits clemency not only because his offenses were not so grave as to warrant a Dishonorable Discharge (DD), but also because he has been a good citizen in the 40 years since his conviction.

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

On 9 August 1960, the applicant enlisted in the Army, at age 17.  He completed his required training and was awarded military occupational specialty (MOS) 640 (Light Vehicle Driver).  During his service, he also served as a Light Weapons Infantryman, MOS 111.

The record shows he was administered nonjudicial punishment under Article 15, Uniform Code of Military Justice on three occasions for dereliction of duty, missing bed check and his failure to comply with a general order.  The documentation is not in the available records.

On 18 April 1962, he was convicted by a summary court-martial of the illegal possession of a switchblade knife.  His approved sentence was a reduction and forfeiture.

On 20 November 1962, in consonance with his plea, he was convicted by a General Court-Martial (GCM) of larceny of one pistol belt, valued about $1.20, one canteen with canteen cup and cover, valued about $1.92, one magazine pouch, valued about $1.65, one first aid pouch, valued about $.33, of a total of about $5.10, the property of a senior noncommissioned officer (NCO) of breaking restriction to the company area and the mess hall at about 0001 hours, 
3 September 1962; and of disrespect in language to a superior NCO by saying to him “don’t put your hands on me.  I am not like the others around here, I will fight you,” or words to that effect; of being absent without leave from 0001, 
3 September to 0115 hours, 9 September 1962 and 2040 hours, 11 September to 0200 hours, 16 September 1962; and for assaulting a civilian on or about 
15 September 1962 by hitting him about the head and body with his fists and by striking him about the head and body with a means likely to product grievous bodily harm, to wit: a pair of metal hand knuckles.  It is also relevant that the applicant was convicted of assaulting a 55-year old German national, together with two other soldiers.  Contrary to the applicant’s statements, the evidence at trial demonstrated that the applicant was the primary assailant, using aluminum knuckles that produced several gashes and bruises on the victim’s head, arms, and legs.  His sentence was a DD, two years confinement, forfeiture of all pay and allowances and reduction to the lowest enlisted pay grade.

On 16 December 1962, the sentence was approved.

On 18 January 1963, the Board of Review, United States Army, affirmed the findings and sentence.

On 27 March 1963, the United States Court of Military Appeals denied the applicant’s Petition for Grant of Review.

On 6 May 1963, a physical examination cleared him for separation

On 11 May 1963, he was dishonorably discharged based on the results of a court-martial.  His separation document indicates he had 2 years, 2 months and 10 days of creditable service and 204 days of lost time.

On 22 November 1963, he was released from confinement and placed on parole.

The statutory authority under which this Board was created (Title 10, United States Code, section 1552, as amended) precludes any action by this Board, which would disturb the finality of a court-martial 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 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 gravity of the offenses warranted trial by GCM.  His 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.  His statement and evidence concerning his post service conduct have been noted, however, they do not sufficiently convince the Board that he is entitled to an upgrade of his discharge.

2.  The Board notes the applicant was almost 19 years of age at the time of his first court-martial and over 19 when he was convicted by the GCM.

3.  The Board also notes his record of post-service achievements; however, they are not sufficiently mitigating to overcome his undistinguished record of service or to warrant any upgrade of his discharge.

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, unjust or that clemency is appropriate.  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

_sac_____  _jtm_____  _kwl___  DENY APPLICATION

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

INDEX

CASE ID	AR2001063281	
SUFFIX		
RECON		
DATE BOARDED	20020507	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144	
2.		
3.		
4.		
5.		
6.