MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 5 September 2002
         DOCKET NUMBER: AR2002072742

         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. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Ms. Celia L. Adolphi		Chairperson
Mr. Melvin H. Meyer		Member
Mr. John T. Meixell		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 the date of birth (DOB) recorded in his military records be corrected and that his dishonorable discharge (DD) be upgraded.

APPLICANT STATES: In effect, that looking at the past and present in trying to determine why he lacks the ability to accept conditions he can not change, he has concluded that it is the insecurity he suffers as a result of his discharge. In support of his application, he provides a copy of a print-out from the Social Security Administration that lists a DOB that contains a year of birth of 1954, which is different than the 1952 year of birth that is recorded in his military record.

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

Incorporated herein by reference are military records that were summarized in the enclosed memorandum (AC-78-06400), which was prepared to reflect the Board's original consideration of the applicant’s request that his DD be upgraded to an honorable or general discharge.

On 10 December 1971, he enlisted in the Regular Army for 2 years. His Enlistment Contract (DD Form 4) lists the year of his birth as 1952 in Item
21 (Date of Birth). The year of birth of 1952 is also listed in Item 6 (Date of Birth) of the applicant’s Enlisted Qualification Records (DA Form 20), which was created on 15 December 1971, upon his entry on active duty, and which was last reviewed and authenticated by the applicant with his signature on 4 September 1974.

The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition. However, it does contain an extensive disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following two dates, for the offenses indicated: 19 September 1972, for unlawfully striking a private; and 10 May 1974, for being absent without leave for 6 days between 2 and 8 May 1974.

On 27 April 1973, the applicant was found guilty of stealing currency of a value of $75.00 from a private by means of force by a general court-martial (GCM). The sentence imposed by the court was a DD, forfeiture of all pay and allowances, confinement at hard labor for three years, and a reduction to the grade of E-1.

On 27 June 1973, the convening authority approved only so much of the sentence as provided for a DD, forfeiture of all pay and allowances, confinement at hard labor for one year, and a reduction to the grade of E-1.

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On 26 July 1974, the United States Army Court of Military Review affirmed the GCM findings and sentence pertaining to the applicant. On 7 May 1975, GCM Order Number 12, issued by Headquarters, U.S. Army Training Center Engineer and Fort Leonard Wood, Fort Leonard Wood, Missouri, ordered the unexecuted portion of the sentence pertaining to a DD to be executed based on the findings and sentence being affirmed. On 9 May 1975, the applicant was discharged accordingly.

The DD Form 214 issued to the applicant upon his discharge confirms that he received a DD and was separated under the provisions of chapter 11, Army Regulation 635-200, by reason of court-martial conviction. At the time of his discharge, he had completed a total of 2 years, 6 months, and 8 days of creditable active military service, and he had accrued 356 days of time lost due to confinement and AWOL.

The year of birth recorded in Item 4 (Date of Birth) of the applicant’s DD Form 214 was 1952, which is the same year of birth recorded in his enlistment contract, the records created upon his entry on active duty, and in all the orders and documents published on him throughout his tenure on active duty.

On 13 December 1978, the applicant’s request that his DD be upgraded to an honorable or general discharge was denied by this Board after it concluded the applicant provided no evidence to support an upgrade to his discharge.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 11, in effect at the time, established the policy and procedure for separating members with a dishonorable or bad conduct discharge. It provided that a soldier will be given a DD pursuant only to an approved sentence of a general court-martial; and that the appellate review must be completed and affirmed prior to the execution of the discharge portion of the sentence.

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.

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 notes the applicant’s contention that the year of his birth contained in his separation document of 1952 is incorrect, but it finds insufficient evidence to support his claim.

2. The evidence of record confirms that the year of the applicant’s birth is 1952. This is verified in his enlistment contract, personnel record, and various other documents created throughout his military service. For historical purposes, the Army has an interest in maintaining the accuracy of its records. The information contained therein should reflect the conditions and circumstances that existed at the time the records were created and under which the military service was performed. Therefore, the Board concludes that there is insufficient evidence to support changing the year of birth contained in the applicant’s military records and in the 9 May 1975 separation document at this time.

3. The evidence also confirms that the applicant’s trial by court-martial was warranted by the gravity of the offense for which he was charged. Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.

4. 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. Given the seriousness of the offenses for which the applicant was convicted, his average and undistinguished overall record of service, and the fact that clemency was previously considered and denied by this Board, the
Board concludes that clemency is not warranted in this case.

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

__CLA__ ___MHM___ __JTM__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002072742
SUFFIX
RECON	1978/12/13
DATE BOARDED	2002/09/05
TYPE OF DISCHARGE	DD
DATE OF DISCHARGE	1975/05/09
DISCHARGE AUTHORITY	AR 635-200 C11
DISCHARGE REASON	CM
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 3	100.0200
2. 1021	100.0000
3.
4.
5.
6.