MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           3 April 2003                  
	DOCKET NUMBER:   AR2002080446

	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. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. Patrick H. McGann		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.  

APPLICANT STATES:  In effect, that he is a small business owner with no arrests in 40 years, and he is a good citizen and respected within his community. He states that he would like to put his discharge behind him and have it upgraded if possible.  

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

He entered the Regular Army on 22 June 1961, and served on active duty until being separated with a BCD on 28 September 1963.

The applicant’s record shows that the highest rank he attained while serving on active duty was private first class/E-3 (PFC/E-3).  With the exception of a marksmanship qualification badge, he received no individual awards or decorations while serving on active duty.  The record documents no acts of valor, significant achievement, or service warranting special recognition.  However, it does contain an extensive disciplinary history.  

On 10 May 1962, a summary court-martial convicted the applicant of being absent without leave (AWOL) from his unit at Fort Riley, Kansas, from on or about 24 April to on or about 25 April 1962.  The resultant sentence included confinement at hard labor for 30 days and a forfeiture of $25.00.  

On 28 January 1963, a special court-martial convicted the applicant of two specifications of being absent without leave (AWOL) from his unit at Fort Jackson, Carolina.  The first period of AWOL was from on or about 30 November to on or about 3 December 1962; and the second period was from on or about 
4 December 1962 to on or about 9 January 1963.  The resultant sentence included a reduction to private/E-1, confinement at hard labor for six months, and a forfeiture of $55.00 per month for six months.  

On 22 May 1963, a general court-martial (GCM) convicted the applicant of one charge and specification of violating Article 116 and one charge and specification of violating Article 108 of the Uniform Code of Military Justice (UCMJ).  The first charge included his participating in a riot, refusing to obey the lawful order a superior officer, and by destroying government property.  The second charge was willfully and wrongfully damaging a building that was government property.  The resulting sentence included a dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for eighteen months. 

On 19 July 1963, the Board of Review, United States Army reviewed the applicant’s case, and it held that the findings of guilty and the sentence as approved by the convening authority were correct in law and fact.  It further determined, based on the entire record, that the findings of guilty and only so much of the sentence that provides for a BCD, total forfeiture, and confinement at hard labor for fifteen months should be approved, and it finally affirmed the guilty findings and the sentence as modified.  

On 28 September 1963, the applicant was discharged.  The separation document (DD Form 214) issued to him at the time shows that he received a BCD pursuant to a GCM conviction.  It also confirms that at the time of his discharge, he had completed a total of 1 year, 5 months, and 7 days of creditable active military service, and he had accrued 302 days of time lost due to AWOL and confinement.  On 1 January 1964, he was released from confinement on parole.  

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11, in effect at the time, established the policy for the separation of members with a dishonorable or bad conduct discharge pursuant to an approved sentence of a general or special court-martial.  It stated that discharge would be accomplished only after the completion of the appellate process, and affirmation of the court-martial findings and sentence. 

Title 10 of the United States Code, section 1552 as amended does not permit any redress by this Board of the finality of a court-martial conviction and empowers the Board 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 evidence of record confirms that the applicant’s trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.

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.  

3.  The Board carefully considered the applicant’s entire record of service and his post service conduct.  However, given the seriousness of the offenses for which he was convicted, the Board finds that these factors are not sufficiently meritorious or mitigating to warrant 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

__sac___  ___ra ___  ___pm___  DENY APPLICATION

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

INDEX

CASE ID	AR2002080446	
SUFFIX		
RECON		
DATE BOARDED	2003/04/03	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	1963/09/28	
DISCHARGE AUTHORITY	AR 635-200 	
DISCHARGE REASON	Court-Martial 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  30	105.0000	
2.		
3.		
4.		
5.		
6.