ABCMR Memorandum of                                                             AR2002081154
Consideration (cont)

MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           4 September 2003                   
	DOCKET NUMBER:   AR2002081154

	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. Raymond V. O'Connor, Jr. | | Chairperson
| Ms. Barbara J. Ellis | | 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 Bad Conduct Discharge (BCD) be changed to show that he was separated as a result of an entry-level status (ELS) separation.

APPLICANT STATES:  That he believes that he would not have received the same type of discharge under current standards.

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

That as a civilian minor, he was convicted of petty larceny, of illegal possession of alcohol, and, on two occasions, of misappropriation of an automobile.  On 27 March 1968, he was granted a moral waiver for these offenses and, on 3 June 1968, he was inducted into the Army of the United States for 2 years. 

The applicant took Basic Combat Training (BCT) and Advanced Individual Training (AIT) at Fort Dix, New Jersey, from on/about 10 June 1968 to on/about 27 September 1968.  The record shows that he was absent without leave from his training unit from 25 June - 7 July 1968 and from 31 August - 3 September 1968; there is no indication that he was ever punished for these offenses.

The applicant successfully completed all required military training, was awarded military occupational specialty (MOS) 94B, Cook, and was assigned to Fort Carson, Colorado, as his first permanent duty assignment.  He arrived at Fort Carson on/about 11 October 1968.

On 22 January 1969, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being AWOL from 21-31 December 1968.  His punishment included the forfeiture of $23.00 pay per month for 1 month and 14 days of extra duty and restriction.  

The applicant went AWOL again for a total of 329 days on three separate occasions from 17 April - 28 May 1969, 17 June - 1 November 1969, and from 3 January - 2 June 1970.  Upon his return to military control at Fort Devens, Massachusetts, he was placed in pre-trial confinement and court-martial charges were preferred against him.

On 26 August 1970, the applicant was convicted by a general court-martial of the above AWOL charges.  He was sentenced to forfeiture of $80.00 pay per month for 10 months, to confinement at hard labor for 10 months, reduction from pay grade E-2 to pay grade E-1, and to be separated with a Dishonorable Discharge (DD).  

The applicant served his sentence to confinement at the United States Disciplinary Barracks (USDB), Fort Leavenworth, Kansas.  On 18 December 1970, the Secretary of the Army remitted the unexecuted portion of his sentence to confinement, effective 28 January 1971, and modified that portion of the sentence adjudging a DD to provide for separation with a BCD.  The record of trial was forwarded to the United States Army Court of Military Review for appellate review.  On 28 January 1971, he was placed in an excess leave status pending the completion of the appellate review.

On 6 November 1970, the United States Court of Military Review affirmed the findings and the sentence and ordered the BCD to be duly executed.  On 28 January 1971, the United States Court of Military Appeals denied the applicant's petition for grant of review.

The applicant's DD Form 214 show that, on 2 March 1971, he was discharged in absentia under the provisions of chapter 3, Army Regulation 635-200 with a BCD.  He had completed 1 year, 1 month and 25 days of creditable active military service.  He also had 584 days of lost time due to being AWOL and in military confinement before and subsequent to his normal expiration of term of service date.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, paragraph 3-11, provides that a soldier will be given a DD or BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

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 ABCMR 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.

Under current standards, chapter 11, Army Regulation 635-200 governs the separation of enlisted personnel while still in an entry-level status during their initial 180 days of service. The policy applies to soldiers who have demonstrated that they are not qualified for retention because they cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation or self-discipline.  These soldiers are given an uncharacterized discharge and, when discharged under the provisions of chapter 11, are discharged by reason of entry-level status performance and conduct.  Soldiers who commit misconduct while in an entry-level status may be subjected to nonjudicial or judicial action and separation for misconduct.

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.  The applicant committed serious military offenses.  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.

3.  The applicant successfully completed all of his training requirements and he served in an active duty status for more than a year; he was not an entry-level status soldier.

4.  The applicant has provided no evidence to suggest that, given the same set of circumstances under current standards, he would have received a discharge that was less severe than the one he received.

5.  In view of the foregoing, there is no basis for granting the applicant 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

__rvo___  __bje___  __fcj___  DENY APPLICATION

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

INDEX

CASE ID | AR2002081154
SUFFIX |
RECON |
DATE BOARDED | 20030904
TYPE OF DISCHARGE | BCD
DATE OF DISCHARGE | 19710302
DISCHARGE AUTHORITY | AR635-200, Chap 11
DISCHARGE REASON | A68.00
BOARD DECISION | (DENY)
REVIEW AUTHORITY |
ISSUES         1. | 144.6800
2. |
3. |
4. |
5. |
6. |