MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           10 October 2002
	DOCKET NUMBER:   AR2002075512

	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:

	Mr. Raymond J. Wagner		Chairperson	
	Mr. Roger W. Able		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:  In effect, that his bad conduct discharge (BCD) be upgraded to a general, under honorable conditions discharge (GD).

APPLICANT STATES:  In effect, that he was young and unaware of the mistake he was making when he was 17 years old, and he regrets making it.  He indicates that he has grown sons now and has been married for 26 years.  He finished his high school equivalency and has earned 31 hours of college course credit.  He has owned his own business for nine years and has a grand daughter. He would now like to get his discharge changed before his time is up here on Earth.  He hopes this can be done after all these years.  He concludes that he has worked hard to be a good person and dad, as well as a husband to his wonderful wife, and the Board’s help in this matter would be greatly appreciated. 

EVIDENCE OF RECORD:  The Board considered and denied the applicant’s original request for an upgrade of his BCD on 15 June 1977.  This Board action was taken prior to a change in the law that requires the Board to publish written proceedings of its findings.  In the absence of a written case summary of the original deliberations in this case, the Board has determined that it would be appropriate in this case to conduct a “de novo” review based on this latest application. 

On 12 July 1965, the applicant enlisted in the Regular Army for 3 years.  He was trained and served in military occupational specialty (MOS) 67A (Aircraft Maintenance Crewmember), and the highest rank he attained during his active duty tenure was private/E-2.

The applicant’s record reveals no acts of valor, significant achievement, or service warranting special recognition.  However it does contain a disciplinary history that includes an extensive history of absence without leave (AWOL) related misconduct and his conviction by a general court-martial. 

A Review of the Staff Judge Advocate (FH Form 842) completed by the Staff Judge Advocate (SJA), III Corps and Fort Hood, Fort Hood, Texas, dated 26 May 1967, confirms that on 6 June 1966, the applicant was convicted by a 
special court-martial of being AWOL for the following periods:  13 through 
15 December 1965; 15 December 1965 through 3 January 1966; and 20 January 1966 through 21 March 1966.

On 17 April 1967, the applicant was convicted by a general court-martial of being AWOL from on or about 8 June 1966 to on or about 10 February 1967.  The court considered a previous special court-martial conviction for the three unauthorized absences mentioned previously, which resulted in four months confinement and forfeiture of $58.00 per month for 4 months. The resultant sentence included a forfeiture of $50.00 pay per month for 6 months pay, confinement at hard labor for 6 months, and a BCD.  On 26 May 1967, the convening authority approved the sentence and ordered all but the BCD portion to be executed.

On 20 June 1967, the United States Army Board of Review, United States Army Judiciary, examined the record of trial and found it to be legally sufficient to support the findings of guilty and the sentence, and it affirmed the conviction.  On 28 June 1967, the unexecuted portion of the sentence pertaining to the BCD was ordered executed, and on 30 June 1967, the applicant was discharged accordingly.  At the time of his discharge, the applicant had completed 5 months and 9 days of creditable active military service and had accrued 547 days of lost time due to AWOL and confinement.

Title 10 of the United States Code, section 1552, as amended, does not permit any redress by the Army Board for 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 discharge should be upgraded because his youth and immaturity contributed to his misconduct and based on his post service conduct and accomplishments.  However, the Board finds these factors are not sufficiently mitigating to warrant clemency.

2.  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.  The evidence of record confirms that the applicant’s conviction and discharge were effected in accordance with applicable law and regulations in effect at the time, and that his trial by court-martial was warranted by the gravity of the offenses with which he was charged.

3.  Notwithstanding the applicant’s contentions and desires, the Board finds that the applicant’s discharge appropriately characterizes the misconduct for which he was convicted, and accurately reflects his overall undistinguished record of service.  Therefore, it finds there is an insufficient basis to grant clemency in this case.

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 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

__RJW__  __RWA__  __JTM__  DENY APPLICATION

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

INDEX

CASE ID	AR2002075512	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/10/10	
TYPE OF DISCHARGE	 BCD	
DATE OF DISCHARGE	1967/06/30	
DISCHARGE AUTHORITY	AR 635-204 .  .  .  .  .  	
DISCHARGE REASON	Trail By Court-Martial	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 144.9301	105.0100	
2.  144.9221		
3.		
4.		
5.		
6.