MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           5 August 2003                   
	DOCKET NUMBER:   AR2002080134

	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	
	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Ronald J. Weaver		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 bad conduct discharge (BCD) be upgraded to a fully honorable discharge. 

APPLICANT STATES:  In effect, that his chain of command disliked him; he did not disobey any orders.  He further states in a letter written to the Board that his commander started harassing him, alleging he disobeyed an order after he refused to stop going out with a caucasian woman who worked at the hospital; the woman was just a friend.  He also states he went into town and got drunk because he had no one to talk to about being discriminated against.  He adds he has a head injury and viral arthritis that he believes is service connected. 

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

On 26 July 1977, he enlisted in the Regular Army (RA) for 3 years.  He was assigned to Fort Jackson, South Carolina, for initial entry training.  While undergoing basic combat training, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for being derelict in the performance of his duties.  His punishment included the forfeiture of $70.00 pay per month for 1 month.

The applicant completed basic combat training and, on 4 November 1977, he started advanced individual training (AIT) in military occupational specialty (MOS) 76Y (Unit Supply Specialist).  He experienced difficulty with the subject matter and, on 6 December 1977, appeared before an academic "drop" board.  The board determined that the applicant was unable to complete the 76Y course due to unspecified academic reasons.  The board recommended that he be trained in MOS 11B, Infantryman.  On 9 January 1978, he was transferred to Fort Benning, Georgia, for AIT in MOS 11B.  

At Fort Benning, the applicant left his unit in an absent without leave (AWOL) status from 24-26 February 1978.  The record contains no evidence that he was ever punished for this offense.  He completed AIT and was assigned to Fort Campbell, Kentucky on 9 March 1978 with duties in MOS 11B.  

On 8 November 1978, the applicant accepted NJP for failure to go to his appointed place of duty at the time prescribed on 3 October 1978.  His punishment included 14 days of extra duty and restriction. 

On 15 November 1978, the applicant accepted NJP for being AWOL from his unit at Fort Campbell on 7 November 1978.  His punishment included reduction from pay grade E-3 to pay grade E-1, forfeiture of $209.00 pay per month for 2 months, and 30 days' correctional custody at the Correctional Custody Facility (CCF).

On 5 May 1979, the applicant was assigned to Germany.  On 4 September 1979, he accepted NJP for being drunk and disorderly in a private residence and for willfully and wrongly damaging private property on 2 August 1979.  His punishment included 14 days of extra duty and the forfeiture of $100.00 pay per month for 1 month.  On an unknown date, he was again advanced to pay grade E-3.

On 14 September 1979, the applicant accepted NJP for failure to go to his appointed place of duty at the time prescribed on 6 September 1979.  His punishment included an oral reprimand; reduction to pay grade E-2 (suspended for 90 days) and the forfeiture of $109.00 per month for 1 month.  

The applicant was AWOL from his unit in Germany from 4 October-31 December 1979 when he returned to military control at the Personnel Control Facility, Fort Bragg, North Carolina.  On 30 January 1980, he accepted NJP for this period of AWOL.  His punishment included reduction to pay grade E-1, the forfeiture of $100.00 pay per month for 2 months, and 30 days correctional custody at the CCF (suspended until 29 July 1980).  He was reassigned to Fort Polk, Louisiana.

On 11 July 1980, a bar to reenlistment was initiated against the applicant.  The reasons cited for the bar were that the applicant had failed to respond to any type of corrective actions, he constantly failed to repair, and he was disrespectful and required constant supervision.  On 12 August 1980, the applicant stated in his appeal to the bar to reenlistment that he desired to remain in the military; that the training was great; that he enjoyed the challenges associated with his job; and that he had a son in Germany and he desired the opportunity to reenlist and go to Germany to see his son.  His appeal to the bar to reenlistment was denied.

On 12 September 1980, the applicant was tried by a special court-martial and convicted of:  disobeying the lawful command of a superior commissioned officer on 11 July 1980; disobeying the lawful order of a superior noncommissioned officer on 10 July 1980; breaking arrest on 15 July 1980; and possession of marijuana on 26 August 1980.  He was sentenced to forfeit $250 pay per month for 6 months, confinement at hard labor for 2 months, and separation with a Bad Conduct Discharge (BCD).  He was transferred to the United States Disciplinary Barracks (USDB), Fort Leavenworth, Kansas.

The applicant served his sentence to confinement at the USDB and was released on/about 30 October 1980.  He was given leave and transferred to the PCF, Fort Bragg.  On 26 February 1981, the United States Court of Military Review affirmed the findings, and approved the sentence of the special court-martial.  

On 30 June 1981, the applicant accepted NJP for disobeying a lawful order given by a NCO on 23 June 1981.  His punishment included the forfeiture of $125.00 pay per month for 1 month and confinement at hard labor for 7 days (suspended until 29 December 1981).  

On 7 July 1981, the applicant went AWOL from the PCF at Fort Bragg.  While he was absent, the United States Army Court of Criminal Appeals, on 7 August 1981, affirmed the findings and approved the sentence of the applicant's special court-martial.

On 4 September 1981, the applicant was separated in absentia under the provisions of chapter 11, Army Regulation 635-200 as a result of trial by court-martial, with a BCD.  He had served 3 years, 4 months and 23 days of active military service.  He had 261 days lost time due to being AWOL and in military confinement.

The applicant's Official Military Personnel File contains no medical records.  Therefore, no medical evidence was considered.

Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, United States Code, Section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records is not empowered to change a discharge due to matters which should have been raised in the appellate process, 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.

On 28 January 1987, the Army Discharge Review Board denied the applicant’s request for clemency

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 concluded that 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.

2.  The available evidence does not support any of the applicant's contentions that he was ever harassed, unfairly punished, or discriminated against and he has provided no evidence to the contrary.  The available evidence clearly reflects 

a record replete with numerous disciplinary infractions and shows the applicant was provided numerous opportunities to do the right thing and that he failed to respond.  In fact, the gravity of his offenses escalated until he was separated. 

3.  The available records contains no medical evidence and the applicant has provided no evidence that demonstrates he suffers from an illness or an injury that was either incurred in, or aggravated as a result of his military service.

4.  In view of the foregoing, there is no basis for granting the applicant's request for clemency.

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

__lls___  __clg___  __rjw___  DENY APPLICATION

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

INDEX

CASE ID	AR2002080134	
SUFFIX		
RECON		
DATE BOARDED	20030805	
TYPE OF DISCHARGE	(BCD)	
DATE OF DISCHARGE	19810904	
DISCHARGE AUTHORITY	AR635-200, Chap 11	
DISCHARGE REASON	A68.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.6800	
2.		
3.		
4.		
5.		
6.