ABCMR Memorandum of                                                             AR2002075056
Consideration (cont)

MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           17 December 2002                   
	DOCKET NUMBER:   AR2002075056

	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
| Ms. Barbara J. Ellis | | Member
| Mr. William D. Powers | | 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 a general discharge under honorable conditions.

APPLICANT STATES:  That he had a chemical dependency problem; that at the time that he committed the offense for which he was separated, he was under the influence of alcohol which impaired his ability to think; and that he requested help for his alcohol problem, but was told there was no help available at the time. He also states that he has been sober for over 25 years; that he has educated himself; that he is a counselor; that he works in his community and wishes to work with veterans with chemical dependency problems.  The applicant submits in support of his request an Alcohol and Drug Counselor Certification; a Diploma for completion of the Small Business Management Course; and an Associate in Science Degree from Minneapolis Community College; a Bachelor of Arts Degree from Metropolitan State University; and seven letters that he has received from various schools and organizations that attest to his use of good judgment concerning his personal life, his commitment to helping others, and his professionalism.

EVIDENCE OF RECORD:  The applicant's military record was reconstructed and the record is very limited.  The evidence available indicates that he enlisted in the Regular Army on 17 February 1958 for a period of 3 years.  

While he was stationed in Germany in 1959, court-martial charges were preferred against the applicant and a fellow soldier for unlawfully breaking and entering the shop of a German National with the intent to commit larceny, and of acting jointly in stealing four cameras and one tripod, of a value of about $59.00, the property of a German National, on 1 April 1959.

Before a general court-martial on 27 May 1959, the applicant pled guilty to both offenses and was convicted of both offenses.  He was sentenced to reduction from pay grade E-2 to pay grade E-1, confinement at hard labor for 1 year, forfeiture of all pay and allowances, and to be discharged with a dishonorable discharge (DD).  The applicant had one previous summary court-martial conviction for being absent without leave (AWOL).  The dates of the AWOL are unknown and the summary court-martial order is not contained in the available record.

On 29 September 1959, the United States Court of Military Review affirmed the findings and approved the sentence except for that portion of the sentence providing for a DD. The appropriate authority ordered a BCD to be duly executed and the applicant's record contains an NA Form 13038 (United States of America Certification of Military Service) that shows he was separated on 22 October 1959 with a BCD.

In 1975, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  The ADRB returned his case without action due to insufficient records; however, he was not eligible for an ADRB review because of his court-martial conviction.

Court-martial convictions stand as adjudged or modified by appeal through the judiciary 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 empowered to change the severity of the sentence imposed in the court-martial process 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.

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.  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.

2.  Although the facts and circumstances surrounding the applicant's discharge process are missing, the available evidence indicates that he was separated as a result of a general court-martial conviction with a BCD.  The Board presumes regularity in the discharge process.  The applicant has provided no information that would indicate the contrary.  

3.  Additionally, there is no evidence available to indicate that personal problems or alcohol contributed to the applicant's actions.  Even if true, he had many other legitimate avenues through which to obtain assistance with his personal problems without committing the offenses that led to his separation.

4.  The Board commends the applicant for his accomplishments since departing the military.  However, post service accomplishments alone do not provide the Board a basis to grant clemency.  

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

__lls___  __bje___  __wdp___  DENY APPLICATION

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

INDEX

CASE ID | AR2002075056
SUFFIX |
RECON |
DATE BOARDED | 20021217
TYPE OF DISCHARGE | (BCD)
DATE OF DISCHARGE | 19591022
DISCHARGE AUTHORITY |
DISCHARGE REASON | A68.00
BOARD DECISION | (DENY)
REVIEW AUTHORITY |
ISSUES         1. | 144.6800
2. |
3. |
4. |
5. |
6. |