MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 30 May 2002
         DOCKET NUMBER: AR2002066820

         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. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor		Chairperson
Mr. John P. Infante		Member
Ms. Paula Mokulis		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 dishonorable discharge be upgraded to a general discharge.

APPLICANT STATES: That under current standards, he would not have received the type of discharge he did. He contends that he was so close to finishing his tour that it was unfair to give him a bad discharge, that he should have been allowed to make restitution, that the punishment he received was too harsh and that his punishment was a “racial decision.” In support of his application, he submits a statement, dated 22 October 2001; a copy of his DD Form 214 (Report of Transfer or Discharge); VA Form 21-4138 (Statement in Support of Claim), dated 25 August 2001; and a copy of his resume.

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

The applicant enlisted on 15 January 1962 for a period of 3 years. He successfully completed basic combat training, advanced individual training and airborne training. The applicant was transferred to Germany on 24 July 1962 for duty as a light weapons infantryman.

On 26 April 1963, nonjudicial punishment was imposed against the applicant for disobeying a lawful order. His punishment consisted of extra duty for 14 days.

On 11 June 1963, nonjudicial punishment was imposed against the applicant for leaving his appointed place of duty without proper authority. His punishment consisted of restriction for 14 days.

On 6 July 1963, nonjudicial punishment was imposed against the applicant for failure to safeguard his weapon. His punishment consisted of forfeiture of 7 days pay ($15).

On 7 September 1963, nonjudicial punishment was imposed against the applicant for failing to perform his assigned duties as a guard. His punishment consisted of a forfeiture of $11.

On 3 October 1963, nonjudicial punishment was imposed against the applicant for failure to repair. His punishment consisted of extra duty for 14 days.

The applicant was transferred back to the United States on 13 July 1964.

On 14 October 1964, the applicant was convicted by a special court-martial of being absent without leave (AWOL) from 12 September 1964 to 15 September 1964 and from 16 September 1964 to 22 September 1964. He was sentenced to



be reduced to E-1, to be confined at hard labor for 3 months and to forfeit $48 per month for 3 months. The convening authority approved the sentence but suspended the confinement at hard labor for 3 months.

On 18 November 1964, nonjudicial punishment was imposed against the applicant for failure to obey a lawful order. His punishment consisted of extra duty for 14 days.

On 28 December 1964, nonjudicial punishment was imposed against the applicant for failure to report to his assigned place of duty. His punishment consisted of extra duty for 14 days.

On 24 May 1965, the applicant was convicted by a general court-martial of eight specifications of presenting false claims totaling $1443. He was sentenced to forfeit all pay and allowances, to be confined at hard labor for 2 years and to be dishonorably discharged. On 28 July 1965, the convening authority approved only so much of the sentence as provides for a dishonorable discharge, confinement at hard labor for 18 months and total forfeitures.

On 2 September 1965, the Board of Review of the Office of The Judge Advocate General modified the applicant’s sentence and affirmed a bad conduct discharge, forfeiture of all pay and allowances and confinement at hard labor for 15 months.

Accordingly, the applicant was discharged with a Bad Conduct Discharge Certificate on 20 December 1965 under the provisions of Army Regulation
635-204, for conviction by a general court-martial. He had served 2 years,
11 months and 26 days of total active service with 23 days lost due to AWOL and confinement. He had 320 days lost subsequent to his normal expiration term of service.

Army Regulation 635-204, in effect at that time, set forth the basic authority for separation of enlisted personnel with dishonorable and bad conduct discharges. Paragraph 1b of this regulation states that an enlisted person will be discharged with a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial imposing a bad conduct discharge.

Section 1552(f), Title 10, United States Code states that the ABCMR can only review records of court-martial and related administrative records to correct a record to accurately reflect action taken by reviewing authorities under the Uniform Code of Military Justice (UCMJ) or to take clemency action.

Army Regulation 635-200, paragraph 3-7, provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently
meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the soldier’s separation specifically allows such characterization.

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 considered the applicant’s contentions that under current standards, he would not have received the type of discharge he did, that he was so close to finishing his tour that it was unfair to give him a bad discharge, that he should have been allowed to make restitution and that the punishment was too harsh. However, evidence of record shows that the applicant was sentenced to be discharged from the Army with a dishonorable discharge but the Board of Review of the Office of The Judge Advocate General affirmed a bad conduct discharge, a lesser punitive discharge.

2. The Board considered the applicant’s contention that his punishment was a “racial decision.” However, there is no evidence of record available to the Board, and the applicant has provided no evidence, to support this contention.

3. The applicant’s administrative separation was accomplished in compliance with applicable regulations.

4. The applicant has failed to show through the evidence submitted with his application or the evidence of record that the actions taken in his case were in error or unjust.

5. The Board reviewed the applicant’s record of service which included seven nonjudicial punishments, one special court-martial conviction and one general court-martial conviction and determined that his military record was not satisfactory. Therefore, the Board determined that there is no basis for upgrading the applicant’s bad conduct discharge to a general discharge or to grant clemency in this case.

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

RVO____ JPI____ PM______ DENY APPLICATION

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

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INDEX

CASE ID	AR2002066820
SUFFIX
RECON
DATE BOARDED	20020530
TYPE OF DISCHARGE	(DD) The Board of Review of the Office of The Judge Advocate General modified the applicant’s sentence and affirmed a BCD.
DATE OF DISCHARGE	19651220
DISCHARGE AUTHORITY	AR 635-204
DISCHARGE REASON	Conviction by a general court-martial
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	110.0200
2.
3.
4.
5.
6.