MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 24 July 2001
         DOCKET NUMBER: AR2001056014

         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. William Blakely		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Ms. Margaret V. Thompson		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)

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APPLICANT REQUESTS: In effect, that his bad conduct discharge (BCD) be upgraded to a general, under honorable conditions discharge.

APPLICANT STATES: In effect, that he was treated unfairly and should not have court-martialed. He states that a hardship discharge would have been the correct method to separate him from the Army. He states that the results of his company commander denying his request to see his family left his kids unattended for 2 days. He further states that he was told that his discharge would be automatically upgraded after 5 or 6 years. Also, he was unaware that his discharge had not been upgraded until he applied for veterans benefits and employment. In support of his application he submits a copy of the record of trial of his special court-martial conviction.

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

On 4 December 1969, he enlisted in the Army for 3 years. He completed basic combat training and advanced individual training but failed to report to his first duty station. On 7 April 1970, he was declared absent without leave (AWOL) and he remained in that status until returning to military control on 5 June 1970.

On 28 August 1970, he again departed AWOL and remained away until returning to military control on 30 August 1970, at the Special Processing Detachment, Fort Meade, Maryland, where he was placed in confinement on 31 August 1970.

On 9 September 1970, the applicant was released from confinement and on
21 September 1970, he again departed AWOL. He was returned to military control on 6 October 1970 and was again placed in confinement, where he remained until 30 November 1970.

On 4 December 1970, he was convicted by a summary court-martial of being AWOL from 21 September 1970 to 6 October 1970 and his sentence was a reprimand.

On 14 December 1970, the applicant again departed AWOL and remained away until returning to military control at the Special Processing Detachment, Fort Jackson, South Carolina on 16 December 1970. On 4 January 1971 he again departed AWOL and remained away until 3 February 1971.

On 5 March 1971, he was convicted by a summary court-martial of two specifications of AWOL: 14 to 16 December 1970; and 4 January to 3 February 1971. His sentence was a reduction to private/E-1; forfeiture of $50.00 and
30 days restriction (suspended).

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The applicant was again AWOL from 7 to 8 March 1971, for which he accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on 3 February 1971. He was AWOL again from 16 to 17 March 1971, and once again accepted NJP for this offense.

The applicant again departed AWOL on 28 March 1971, and remained away until returning to military control at the Personnel Control Facility, Fort Campbell, Kentucky on 2 May 1971, at which time he was placed in confinement. He was released from confinement on 9 June 1971, and again departed AWOL on 8 July 1971. He remained away until being returned to military control at the Personnel Control Facility, Fort Meade, Maryland on 27 January 1972. On
25 February 1972, the applicant again departed AWOL and remained away until returning to military control on 4 July 1972.

On 27 September 1972, the applicant was convicted by a special court-martial of three specifications of AWOL for the periods: 28 March to 2 May 1971; 8 July 1971 to 27 January 1972; and 25 February to 4 July 1972. He was sentenced to a forfeiture of $165.00 pay per month for 3 months; reduction to private/E-1, confinement at hard labor for 3 months; and a BCD. The convening authority subsequently approved the sentence on 14 December 1972.

On 12 January 1973, the US Army Court of Military Review examined the record of trial and found it to be legally sufficient to support the findings of guilty and the sentence. On 17 March 1973, the unexecuted portion of the sentence in regard to forfeiture of $165.00 pay for 3 months and confinement at hard labor for
3 months was remitted and the portion pertaining to BCD was ordered executed and on 13 April 1973, the applicant was separated accordingly. At the time of his discharge he had completed 1 year, 5 months, and 5 days of creditable active military service and had accrued 695 days of lost time due to AWOL and confinement.

According to the Manual for Courts-Martial, Table of Maximum Punishments, in effect at the time, the maximum punishment the applicant could have received was confinement at hard labor for 6 months, forfeiture of $165.00 pay for
6 months, reduction to the rank of private (E-1), and a BCD.

Title 10 of the United States Code, section 1552 as amended does not permit any redress by the Army Board of Correction of Military Records (ABCMR) of the finality of a court-martial conviction and empowers the ABCMR to only change a discharge if clemency is determined to be appropriate.

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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 contentions of the applicant that, in effect, his BCD was unjust, he should have been given a hardship discharge based on his family situation, and he was told that his discharge would automatically be upgraded. However, the Board finds these claims lack merit and are not sufficient to warrant the requested upgrade to his discharge.

2. Trial by court-martial was warranted by the gravity of the offenses charged. His 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. 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.

4. Given the applicant’s extensive AWOL related disciplinary history coupled with his undistinguished overall record of service, the Board finds the type of discharge directed and the reasons therefor were appropriate and it concludes that clemency is not warranted in this case.

5. There is no provision of law that mandates an automatic upgrade of a soldier’s discharge. An upgrade of a soldier’s discharge may be warranted if the Board determines that the discharge was in error or unjust. The Board found no evidence in the file that would satisfy this requirement.

6. 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.

7. 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

__JNS__ __ MVT __ __WDP__ DENY APPLICATION

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

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INDEX

CASE ID	AR2001056014
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2001/07/24
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.