ABCMR Memorandum of                                                             AR2002075192
Consideration (cont)

MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:          14 January 2003                  
	DOCKET NUMBER:  AR2002075192

	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:

| Ms. Margaret K. Patterson | | Chairperson
| Ms. Jennifer L. Prater | | Member
| Ms. Mae M. Bullock | | 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 (DD) be upgraded to a general discharge (GD). 

APPLICANT STATES:  In effect, that after being involved in two fights, his sergeant informed him that he would be sorry for what he did and placed him on snow shoveling detail.  The applicant states that he was the only one assigned to a 4-day snow shoveling detail and that, after the fourth day, he refused to shovel any more snow.  He also states that he was advised by counsel to plead guilty to the charge and he would receive probation and be discharged from the Army.  He states that he agreed to the plea bargain; however, he was sentenced to confinement for 1 year and a DD.  He now feels that he owes it to his family to get his records corrected.  Also, he has three sons that served honorably.

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

The applicant's military records were lost or destroyed in the National Personnel Records Center fire of 1973.  Information herein was obtained from the record of his trial by court-martial and from reconstructed personnel records.

The applicant enlisted in the Regular Army on 16 November 1948 and was honorably discharged on 29 April 1952 for the purpose of immediate reenlistment.  He was credited with 3 years, 5 months, and 17 days of active military service.  

He reenlisted in the Regular Army on 30 April 1952 for a period of 3 years.  

On 16 July 1952, the applicant departed his unit absent without leave (AWOL) and remained absent until 17 December 1952.  On 29 December 1952, the applicant was convicted by a special court-martial for this period of AWOL.  He was sentenced to confinement at hard labor for 6 months (suspended on 9 March 1953) and forfeiture of $50.00 pay per month for 6 months.  The sentence was approved on 2 January 1953.   

On 15 May 1953, the applicant was found guilty by a summary court-martial for AWOL from 8 May to 14 May 1953.  He was sentenced to forfeiture of $20.00 pay per month for 1 month and 15 days’ restriction.  The sentence was approved on 15 May 1953.
  
On 15 November 1954, the applicant was found guilty by a special court-martial for two specifications of AWOL (21 to 22 September 1954 and 2 to 11 November 1954).  He was sentenced to confinement at hard labor for 6 months and forfeiture of $60.00 pay per month for 6 months.  The sentence was approved on 16 November 1954 and was suspended 3 times and vacated 2 times.

On 27 December 1954, the applicant was found guilty by a summary court-martial of three specifications for being absent from bed check on 23, 24, and 25 December 1954.  He was sentenced to 45 days’ restriction.  The sentence was approved on 27 December 1954.

On 21 February 1955, the applicant was found guilty by a summary court-martial for being AWOL from 14 to 17 February 1955.  He was sentenced to confinement at hard labor for 1 month (suspended for 1 month) and forfeiture of $50.00 pay per month for 1 month.  The sentence was approved on 21 February 1955.

On 8 March 1955, at Camp Crawford, Hokkaido, Japan, the applicant was charged with willfully disobeying a lawful order by his superior non-commissioned officer (NCO) to shovel snow off the walk leading from the orderly room to the mess hall.  The applicant stated he would not shovel the walk and that his NCO could put him back in jail.   

On 11 March 1955, an Article 32 Investigation Report recommended the applicant be tried by a general court-martial.

The applicant entered into a pre-trial agreement with the convening authority wherein he would receive no more than a DD, total forfeiture of all pay and allowances, and 1 year in confinement.  When questioned by the judge on 22 March 1955, he indicated that he was satisfied that the agreement was in his best interest.

On 22 March 1955, at Camp Schimmelpfennig, Honshu, Japan, APO 201, the applicant pled guilty and was found guilty by a general court-martial for willfully disobeying a lawful order from his superior NCO to shovel snow.  He was sentenced to a DD, confinement at hard labor for 5 years (5 previous convictions considered), and total forfeiture of all pay and allowances.  

On 26 April 1955, the sentence was approved as adjudged, except that, in accordance with the pre-trial agreement, confinement at hard labor was reduced to 1 year.  Pending completion of the appellate process, the applicant was transferred to Central Command, APO 500, for confinement in the United States Army Stockade, 8044^th Army Unit, APO 500.

On 20 May 1955, the Board of Review, Office of the Judge Advocate General, found the findings of guilty and the sentence as approved by proper authority correct in law and fact and affirmed the sentence.

On 10 August 1955, the sentence, having been affirmed pursuant to Article 66, and the provisions of Article 71c having been complied with, was executed.  

Accordingly, the applicant was discharged and committed to the Branch United States Disciplinary Barracks, Lompoc, California to serve his sentence.

On 7 September 1955, after a review of the applicant’s case, the Secretary of the Army disapproved restoring the applicant to duty and clemency.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, paragraph 3-10, provides that soldier will be given a dishonorable discharge pursuant only to an approved sentence to a general court-martial.  The appellate review must be 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 told if he pled guilty, he would be given probation and discharged from the Army.  However, the evidence of record shows the applicant entered into a pre-trial agreement with the convening authority in which he agreed to plead guilty in exchange for no more than confinement for 1 year, a DD, and total forfeiture of all pay and allowances.  The judge questioned the applicant about this agreement and if he understood the sentence as stated in the pre-trial agreement.  The applicant told the judge that he entered the agreement voluntarily, that he understood the agreement, and that he was satisfied that the pre-trial agreement was in his best interest.

2.  The evidence of record clearly shows that the applicant was adjudged guilty by court-martial and that the convening authority approved the sentence as prescribed in the pre-trial agreement.  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.

3.  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.

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

__mkp___  __jlp___  __mmb___  DENY APPLICATION

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

INDEX

CASE ID | AR2002075192
SUFFIX |
RECON |
DATE BOARDED | 20030114
TYPE OF DISCHARGE | DD
DATE OF DISCHARGE | 19550810
DISCHARGE AUTHORITY |
DISCHARGE REASON |
BOARD DECISION | DENY
REVIEW AUTHORITY |
ISSUES         1. | 144.9405
2. |
3. |
4. |
5. |
6. |