MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
                                   


         BOARD DATE: 21 May 2002
         DOCKET NUMBER: AR2001064948

         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. Jennifer L. Prater		Chairperson
Ms. Barbara J. Ellis		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)

---

APPLICANT REQUESTS: In effect, that his general court-martial (GCM) conviction be set aside and his bad conduct discharge (BCD) be upgraded.

APPLICANT STATES: In effect, that he never had a problem with purchasing a firearm prior to moving to New Jersey and that he did not know that a GCM was a disqualifier for purchasing a firearm. The applicant also states that a GCM and BCD are too harsh for the charge of being absent without leave (AWOL); that he has been a good citizen; that he has a good work record in the construction trade; that he raised four stepsons; that he is drug free and has been drug free since 1970; and that he has a clean criminal record. The applicant is asking for an upgrade of his discharge to get out of the construction business and pursue a career in the security field.

In support of his application, the applicant submitted a statement in his own behalf.

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

He was inducted into the Army of the United States on 3 January 1968 for a period of 2 years. He was assigned to Fort Dix, New Jersey for basic combat training (BCT). While in BCT, the applicant felt that he was unable to adjust to military service and requested discharge. The applicant went AWOL while he was awaiting discharge under Army Regulation (AR) 635-212. He was AWOL from 13 April 1968 to 26 April 1968 and again from 2 May 1968 to 18 December 1968. On 19 December 1968, the applicant was placed in pretrial confinement at Fort Devens, Massachusetts.

On 24 January 1969, the applicant was convicted by a special court-martial of being AWOL from 2 May to 18 December 1968. He was sentenced to confinement at hard labor (CHL) for 5 months and forfeiture of $73.00 pay per month for 5 months. On 31 January 1969, the sentence was approved and ordered executed as adjudged. The applicant was assigned to the Correctional Training Facility (CTF) at Fort Riley, Kansas, and completed his BCT there.

On 4 February 1969, the applicant accepted NJP for escaping from confinement on 31 January 1969. His punishment consisted of forfeiture of $30.00 pay per month for two months. On 17 April 1969, all unexecuted portions of the applicant's sentence to CHL and forfeitures of pay were remitted.

Following his release from the Fort Riley CTF on 21 April 1969, the applicant was assigned to Fort Gordon, Georgia, for training in military occupational specialty (MOS) 72C, Central Office Telephone Switchboard Operator. After completion of MOS training, he was awarded MOS 72C.

---

On 19 June 1969, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for willfully disobeying a lawful order from a superior noncommissioned officer (NCO). His punishment consisted of a reduction in rank to private/E-1, forfeiture of $25.00 pay per month for 1 month, and 14 days' extra duty and restriction.

On 27 July 1969, the applicant was transferred to Fort Sam Houston, Texas, for advanced individual training (AIT) as a medic. On 28 July 1969, the applicant went AWOL in transit to Fort Sam Houston and remained AWOL until 9 April 1970 when he was apprehended by civil authorities. On 29 April 1970, the applicant was charged with AWOL.

On 14 July 1970, the applicant was convicted by a GCM of being AWOL from 28 July 1969 to 9 April 1970. He was sentenced to CHL for 10 months, BCD, and reduction to private/E-1. On 31 July 1970, the sentence was approved. Pending appellate review of his case, the applicant was confined at the United States Army Disciplinary Barracks, Fort Leavenworth, Kansas.

On 8 September 1970, the United States Army Court of Military Review affirmed the findings of guilty and the sentence. The sentence, having been affirmed, was ordered executed on 23 October 1970.

On 16 November 1970, the applicant was discharged from the Army with a BCD pursuant to his sentence by GCM. He was credited with 6 months and 26 days of active military service. He had 523 days of lost time prior to normal ETS (expiration term of service) and 318 days subsequent to normal ETS.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Paragraph 11-2, provides that a soldier will be given a BCD pursuant only to an approved sentence to a general court-martial or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed.

Title 10, United States Code, section 1552(f) provides that military correction boards may not disturb the finality of a conviction by court-martial.

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 his conviction by GCM, which resulted in a BCD, was too harsh for the charge of AWOL. However, the evidence of record reflects that the applicant was convicted by a special court-

---

martial for an extended period of AWOL and had accepted two NJP's prior to being convicted by GCM for another extended period of AWOL. Also, the
applicant's chain of command tried to assist him in performing and conducting himself to Army standards by the imposition of nonjudicial and judicial punishment; however, the applicant failed to respond appropriately.

2. The applicant requests a discharge upgrade based upon his successful transition to civilian life and his good post-service conduct. The Board congratulates the applicant on his achievements since departing the Army. However, the Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities.

3. 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.

4. The evidence of record clearly shows that the applicant was adjudged guilty by a court-martial and that the convening authority approved the sentence. Court-martial convictions stand as adjudged or modified by appeal through the judicial process.

5. 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.

6. 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

__jlp ____ ___bje___ ___tl____ DENY APPLICATION

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

---

INDEX

CASE ID	AR2001064948
SUFFIX
RECON
DATE BOARDED	20020521
TYPE OF DISCHARGE	BCD
DATE OF DISCHARGE	19701116
DISCHARGE AUTHORITY	AR 635-200, paragraph 11
DISCHARGE REASON	BCD
BOARD DECISION	DENY
REVIEW AUTHORITY	Director
ISSUES 1.	144.9405
2.
3.
4.
5.
6.