MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           5 February 2002
	DOCKET NUMBER:   AR2001063474

	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:

	Ms. June Hajjar		Chairperson	
	Ms. Karol A. Kennedy		Member	
	Mr. Roger Able		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 to an honorable discharge (HD).  

APPLICANT STATES:  In effect, that his discharge from the Army was unjust.  He further states that his military records were burned in a house fire and now he requires assistance for his physical condition.  In support of his application, he submits a copy of his Armed Forces of the United States Report of Transfer or Discharge (DD Form 214).

EVIDENCE OF RECORD:  The applicant’s military records were not available to the 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 available evidence includes a properly constituted separation document 
(DD Form 214) that contains the authority and reason for discharge.  This document was issued to and authenticated by the applicant with his signature on the date of his separation, 4 October 1956.  

The DD Form 214 confirms that the applicant served on active duty from 7 June 1955 through 4 October 1956.  It also shows that on the date of his separation, he held the rank of private/E-1 and was serving in military occupational specialty (MOS) 120.00 (Pioneer).  Finally, it documents no acts of valor, significant achievement, or service warranting special recognition during his active duty tenure.

The applicant’s discharge packet or the record of his court-martial proceedings, containing the specific facts and circumstances surrounding his general 
court-martial conviction, were not available to the Board.  However, the separation document confirms that he was discharged under the provisions of Army Regulation 635-204, by reason of a general court-martial conviction; and that he received a DD.  It also shows that on the date of his discharge he had completed a total of 5 months and 23 days of creditable active military service and that he had accrued 309 days of time lost.

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.  The Board notes the applicant’s contention that his court-martial conviction was unjust, however, it finds insufficient evidence to support this claim.  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 applicant’s record is void of facts and circumstances concerning events that led to his general court-martial conviction and discharge from the Army.  However, there is a properly constituted DD Form 214 on file, which was authenticated by the applicant, and that contains the authority and reason for his discharge.  Therefore, the Board presumes government regularity in the discharge process.  

3.  Lacking independent evidence to the contrary, the Board is compelled to presume that the applicant’s trial by court-martial was warranted by the gravity of the offenses with which he was charged and that his conviction and discharge were effected in accordance with the applicable law and regulations in effect at the time.  Therefore, since the applicant failed to provide independent evidence to show that his general court-martial conviction was unjust, the Board finds there is insufficient evidence to support clemency in this case.  

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

__JH____  __KAK__  __RA___  DENY APPLICATION

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

INDEX

CASE ID	AR2001063474	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/02/05	
TYPE OF DISCHARGE	(DD)	
DATE OF DISCHARGE	19561004	
DISCHARGE AUTHORITY	AR 635-204 .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	( DENY)	
REVIEW AUTHORITY		
ISSUES         1.	105.00	
2.		
3.		
4.		
5.		
6.