MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 17 October 2002
         DOCKET NUMBER: AR2002073318

         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:

Ms. Joann H. Langston		Chairperson
Ms. Margaret V. Thompson		Member
Mr. Richard T. Dunbar		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: That his bad conduct discharge (BCD) be upgraded to honorable.

APPLICANT STATES: That under current standards, he would not receive a BCD for his minor or isolated offenses, especially when his entire record of service is taken into account. He goes on to state that he believes that only the last 8 months of his service was taken into account and that he had trouble adjusting to stateside duty after returning from Vietnam. He further states that the time he spent in the stockade, 30 years of living with a BCD and the fact that he received a Certificate of Clemency from the Presidential Clemency Board, all give reason for upgrading his discharge.

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

He enlisted in Baltimore, Maryland, on 10 January 1967, for a period of 3 years under the airborne enlistment option. He successfully completed his training and was transferred to Fort Bragg, North Carolina, for duty as a light weapons infantryman.

On 3 October 1967, he was transferred to Fort Campbell, Kentucky, where he remained until he was transferred to Vietnam with his unit on 3 December 1967. He was advanced to the pay grade of E-4 on 18 February 1968. He departed Vietnam on 1 December 1968 and was transferred back to Fort Bragg.

His records show that he was absent without leave (AWOL) from 10 January through 16 January 1969. However, the record is silent as to any punishment imposed for that offense.

On 10 June 1969, he was convicted by a special court-martial of being AWOL from 15 February through 16 February 1969, from 23 February through 24 February 1969 and from 7 April through 27 April 1969. He was sentenced to confinement at hard labor for 3 months, reduction to the pay grade of E-1 and a forfeiture of pay. The convening authority approved the findings and sentence but suspended 2 months of his confinement at hard labor for a period of 3 months. However, the applicant again went AWOL from 22 August to 2 September 1969 and his suspended sentence was vacated.

His records also show that he was admitted to the emergency room on 3 September 1969, for an overdose of a heroin derivative. The clinical record indicates that he had been using heroin derivatives since before entering the service, that he had been restricted to the company area where he could not get the drug and was undergoing withdrawal.


On 3 March 1970, he was again convicted by a special court-martial of being AWOL from 30 October to 3 November 1969 and from 5 November 1969 to 20 January 1970. He was sentenced to a BCD and confinement at hard labor for 3 months.

On 7 May 1970, the United States Army Court of Military Review affirmed the findings and sentence as approved by the convening authority.

Accordingly, he was discharged with a BCD on 18 June 1970, pursuant to a duly reviewed and affirmed court-martial conviction. He had served 2 years, 8 months and 2 days of total active service and had 277 days of lost time due to AWOL and confinement. His awards include the Combat Infantryman Badge, the Parachutist Badge, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal, and the National Defense Service Medal.

On 16 March 1976, he completed the period of reconciliation service recommended by the Presidential Clemency Board and was given an Executive Grant of Conditional Clemency by the President of the United States.

The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 28 March 1980. He cited essentially the same reasons to that board that he has cited to this Board. The ADRB reviewed his entire record of service and determined that there was no evidence to show that he had been improperly or inequitably discharged. The ADRB denied his request on 17 July 1981.

Presidential Proclamation 4313, issued on 16 September 1974, affected three groups of individuals. These groups were fugitives from justice who were draft evaders; members of the Armed Forces who were in an unauthorized absence status; and prior members of the Armed Forces who had been discharged with a punitive discharge for violations of Articles 85, 86, or 87 of the Uniform Code of Military Justice. The last group could apply to a Presidential Clemency Board which was made up of individuals appointed by the President (members were civilians, retired military and members of the Reserve components) who would make a determination regarding the performance of alternate service. That board was authorized to award a Clemency Discharge without the performance of alternate service (excusal from alternate service). The dates of eligibility for consideration under this proclamation for those already discharged from the military service were 4 August 1964 to 28 March 1973, inclusive. Alternate service was to be performed under the supervision of the Selective Service System. When the period of alternate service was completed satisfactorily, the Selective Service System notified the individual’s former military service. The military services issued the actual Clemency Discharges. The Clemency Discharge is a neutral discharge, issued neither under “honorable conditions” nor under “other than honorable conditions.” It is to be considered as ranking between an undesirable discharge and a general discharge. A Clemency Discharge does not affect the underlying discharge and does not entitle the individual to any benefits administered by the Department of Veterans Affairs (formerly Veterans Administration). While there is no change in benefit status per se, a recipient may apply to the Department of Veterans Affairs for benefits.

Title 10, United States Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that the Board is not empowered to set aside a conviction. Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.

Article 86 of the Manual for Courts-Martial, currently in effect, provides, in pertinent part, that a BCD may be imposed as the maximum punishment in a trial by a special court-martial for unauthorized absences of 30 days or more.

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. 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.

2. The type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case.

3. The applicant’s contention that he would not have received a BCD for the same offenses under current standards is without merit. The offenses for which he was charged and convicted still carry the maximum punishment of a BCD, when convicted by a special court-martial.

4. The applicant’s contentions have been noted by the Board. However, they are not sufficiently mitigating to warrant relief when compared to the seriousness of his offenses and his overall record of service.

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

___mvt__ __jhl____ __rtd ___ DENY APPLICATION

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

---

INDEX

CASE ID	AR2002073318
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/10/17
TYPE OF DISCHARGE	BCD
DATE OF DISCHARGE	1970/06/18
DISCHARGE AUTHORITY	AR635-200/SPCM
DISCHARGE REASON	SPCM
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 675	144.6800/A68.00
2.
3.
4.
5.
6.