MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           6 March 2003                   
	DOCKET NUMBER:   AR2002076388

	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	
	Mrs. Carolyn G. Wade		Analyst	

  The following members, a quorum, were present:

	Mr. Walter T. Morrison		Chairperson	
	Ms. Linda D. Simmons		Member	
	Mr. Frank C. Jones, II		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 dishonorable discharge be upgraded to general, under honorable conditions.

APPLICANT STATES:  That he was very young and serving overseas when his misconduct occurred and that the punishment is too harsh for the amount of time he was absent without leave (AWOL).

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

He was born on 12 August 1961 and enlisted in the Regular Army on 14 August 1979 for a period of 3 years.  Following completion of all military training, he was awarded military occupational specialty (MOS) 64C, Motor Transport Operator, and was assigned to the Federal Republic of Germany as his first permanent duty assignment. 

He arrived in Germany on 11 December 1979 and was assigned to B Battery, 3rd Battalion, 37th Field Artillery.  

On 18 March 1980, the applicant departed his unit in an AWOL status and remained AWOL until 25 March 1980.  On 31 March 1980, the applicant absented himself again from his unit and remained AWOL until 25 April 1980.  On 27 April 1980, the applicant once again departed his unit AWOL and remained AWOL until 11 June 1980.  On 12 June 1980, the applicant escaped from the lawful custody of a noncommissioned officer (NCO) and was AWOL until 18 June 1980.

On 20 June 1980, court-martial charges were preferred against the applicant for 4 specifications of being AWOL for the above periods, one specification of failing to obey a lawful order to get a haircut, one specification of escaping from lawful custody, one specification of wrongfully appropriating a 5 ton truck, valued at $14,700.00, the property of the United States Government, one specification of stealing a MGB sports car, the property of the Canadian Post Exchange Car Sales, and unlawfully making a false sworn statement that his car had been stolen.

On 1 October 1980, the applicant was convicted by a general court-martial of four specifications of AWOL, escape from custody, larceny, and making a false statement.  He was sentenced to a Dishonorable Discharge, confinement at hard labor for 20 months, total forfeiture of all pay and allowances, and reduction to private/E-1.  The sentence was approved on 17 December 1980.

On 22 April 1981, the Court of Military Review affirmed the sentence.   On 6 July 1981, the United States Court of Military Appeals denied the applicant’s request for a grant of review.  

On 12 August 1981, the applicant was discharged under the provisions of Army Regulation 635-200 with a DD.  He was credited with 7 months and 15 days of creditable military service and 144 days of lost time.  

Army Regulation 635-200, then in effect, sets forth the basic authority for the separation of enlisted personnel.  Paragraph 11-1, provided that a soldier would be given a dishonorable discharge pursuant only to an approved sentence to a general court-martial.  The appellate review must have been completed and the affirmed sentence ordered duly executed.

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 was a young adult serving overseas when he committed his misconduct.  The Board also noted that the applicant met entrance qualification standards to include age.  The Board further found no evidence that the applicant was any less mature than other soldiers of the same age who successfully completed military service.

2.  The Board noted the applicant’s contention that his punishment was too harsh for his misconduct.  However, the Board thoroughly reviewed the applicant’s overall record of service, noting that his misconduct involved far more than simple AWOL.  The Board, therefore, concluded that the applicant's discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel.  The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant’s service mitigated the misconduct or poor duty performance.  

3.  Trial by court-martial was warranted by the gravity of the offenses charged.  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.

4.  The evidence of record clearly shows that the applicant was adjudged guilty by court-martial and that the convening authority approved the sentence as adjudged.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  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 record and any issues submitted, the Board found no cause for clemency.

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 this 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

__wtm___  __lds___  __fcj___  DENY APPLICATION

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

INDEX

CASE ID	AR2002076388	
SUFFIX		
RECON		
DATE BOARDED	20030306	
TYPE OF DISCHARGE	DD	
DATE OF DISCHARGE	19810812	
DISCHARGE AUTHORITY	AR 635-200, Chap 11	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.9405	
2.		
3.		
4.		
5.		
6.