MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 28 March 2002
         DOCKET NUMBER: AR2001062805

         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. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Ms. Lester Echols		Member
Mr. Thomas Lanyi		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: That his discharge under other than honorable conditions be upgraded to honorable.

APPLICANT STATES: In effect, that his discharge was inequitable, improper and unjust because the social climate in Germany and in the military was at one of its lowest points in the history of the Army. This, coupled with so much racial tension due to racial intolerance, created a climate in which no black man who faced the charges he faced could ever receive a fair and complete pre-trial investigation or trial. He goes on to state that he was one of two black officers assigned to the post and one of the few that had a college education. He continues by stating that at the time there was great concern about officers getting rifted because they did not have a college degree and believes that his race and education caused his superiors to persist in their investigations and find fault with him. He also states that he enjoyed his Army experience and fully intended to make the Army his career. He also states that at the time of his trial and discharge, his counsel failed to advise him that he could apply to the Board for relief and just recently was advised that this course was available to him. In support of his application he submits a copy of a letter to his congressional representative dated in 1963, four third party character references, and several recognition awards as well as documents indicating his professional and educational affiliations.

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

He was commissioned as a United States Army Reserve (USAR) second lieutenant on 19 August 1958 and entered active duty on 25 January 1959.

He successfully completed his Infantry Officer Basic Course, airborne and ranger training and was transferred to Fort Ord, California, where he served as a training and executive officer. He was promoted to the rank of first lieutenant on 25 July 1960 and was transferred to Fort Rucker, Alabama, on 18 January 1961 to undergo flight training. He was academically released from flight training and was transferred to Fort Riley, Kansas, on 1 April 1961. He remained at Fort Riley until he was transferred to Baumholder, Germany, on 5 November 1962, where he was assigned as an assistant billeting officer.

On 6 June 1963, he was convicted by a general court-martial of wrongfully having sexual intercourse with a woman who was not his wife, of inducing a person to commit perjury in an Article 32 investigation, and obstruction of justice. He was sentenced to be dismissed from the service, to forfeiture of all pay and allowances and confinement at hard labor for 2 years. The convening authority approved only so much of the sentence as provided for dismissal from the service and forfeiture of all pay and allowances.

On 1 August 1963, he was transferred to Fort Hamilton, New York, pending the appellate review of his court-martial.

On 23 January 1964, the United States Army Judiciary Board of Review, after an extensive review, affirmed the findings and sentence of the general court-martial as approved by the convening authority. The applicant was advised of his right to petition the Court of Military Appeals and acknowledged receipt of the notification on 2 March 1964.

On 16 May 1964, he was dismissed under other than honorable conditions, pursuant to the sentence of his general court-martial conviction. He had served 5 years, 8 months and 28 days of total active service.

The applicant applied to this Board, with the assistance of counsel on 5 August 1965, contending that the court-martial was convened by reason of bias and prejudice of his commander, that the findings of the court-martial were not consistent with the evidence presented, that the trial was conducted in an atmosphere of race riots and violence and that he had been unjustly denied the counsel of his choice. The Board determined that the applicant had presented insufficient evidence of probable error or injustice and denied his case on 22 December 1965.

The supporting documents submitted by the applicant consist of a letter from the applicant to his congressional representative in 1963, which indicates that the applicant desired the congressional representative to intervene in his behalf to bring the issues at hand to a speedy resolution. He also submits four third party statements, which attest that the applicant is involved in his church and community, is a respected educator and is a retired school administrator. He has also submitted documents showing awards received, affiliation with organizations and a copy of his police record showing that he was charged with common assault in 1968.

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 was properly dismissed pursuant to a sentence by a general court-martial with no indication of any violations of any of his rights.

3. The Board has noted the applicant’s arguments and reviewed his supporting documents. However, the applicant has failed to show through the evidence submitted with his application or the evidence of record that the charges against him were false or that they were racially motivated.

4. While the Board commends the applicant for his excellent post-service conduct, that in itself is not sufficiently mitigating to warrant relief in his case, when compared to the evidence of record.

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

____fe __ ___le ___ ___tl ___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001062805
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/03/28
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	1964/05/16
DISCHARGE AUTHORITY	AR135-173/GCM
DISCHARGE REASON	GCM
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 678	144.6803/A68.03 UD
2.
3.
4.
5.
6.