MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 26 September 2002
         DOCKET NUMBER: AR2002074155

         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. Raymond V. O’Connor, Jr.		Chairperson
Mr. Raymond J. Wagner		Member
Ms. Karen Y. Fletcher		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 bad conduct discharge (BCD) be upgraded to honorable.

APPLICANT STATES: That he made mistakes when he was a young man; however, he is now a 50 year old father of three, a grandfather of five and an upstanding citizen who has been in no trouble since his release from the Army.

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

He enlisted with parental consent in Portland, Oregon, on 19 November 1968, for a period of 3 years and training as a supply clerk. He completed his basic combat training at Fort Lewis, Washington, and his advanced individual training (AIT) at Fort Ord, California. Upon completion of his AIT he received orders transferring him to Europe, with a report date of 24 April 1969.

The applicant failed to report as ordered and was reported as AWOL on 24 April 1969. He remained absent until he was apprehended by civil authorities on 22 May 1969 and was returned to military control at Fort Meade, Maryland, on 28 May 1969.

He was convicted by a summary court-martial on 4 June 1969 of being AWOL from 24 April to 22 May 1969. He was sentenced to a forfeiture of pay and restriction.

He remained at Fort Meade until he received orders transferring him to the Overseas Replacement Detachment at Fort Lewis, with a report date of 13 July 1969. The record is silent as to where he was being transferred to overseas. In any event, he again went AWOL on 13 July 1969 and remained absent until he was again returned to military control on 19 September 1969. He again went AWOL on 10 October 1969 to 11 November 1969, from 15 November to 21 December 1969, from 24 February 1970 to 23 March 1970, from 8 April to 26 May 1970 and from 1 June to 20 September 1970. He was placed in confinement upon his last return to military control and charges were preferred against him for the AWOL offenses on 24 September 1970.

An investigation was conducted on 7 October 1970, under the provisions of Article 32, Uniform Code of Military Justice and paragraph 34 of the Manual for Courts-Martial, which resulted in the investigating officer recommending trial by a general court-martial.

The applicant plead guilty to all of the charges against him and was convicted by a general court-martial (judge alone) on 16 November 1970. He was sentenced to be dishonorably discharged, to be confined at hard labor for 2 years, to forfeit all pay and allowances and to be reduced to the pay grade of E-1. However, on 14 January 1971, the convening authority approved only so much of the sentence as pertained to a BCD, confinement at hard labor for 1 year, forfeiture of all pay and allowances and reduction to the pay grade of E-1. He was transferred to Fort Leavenworth, Kansas, to serve his confinement at the Disciplinary Barracks.

On 21 April 1971, his forfeitures in excess of $83.00 pay per month were suspended.

It is noted that at his trial by court-martial, the applicant read an unsworn statement in which he asserted that he felt that he was too young to be in the Army and that after completing AIT, he decided that he did not want to be in the Army anymore. His mother also testified that the applicant was the youngest of five children and that she also agreed that he was too young. She further stated that he had quit school and because three of his brothers had successfully served in the military, she had hopes that the Army would help him mature.

On 21 April 1971, the United States Army Court of Military Review affirmed the findings and sentence as approved by the convening authority.

On 27 April 1971, during a clemency and parole review, the applicant admitted that he disliked the Army and had hoped to attain a discharge on the basis of his AWOL offenses. He indicated that he did not desire to be restored to duty and his clemency and parole was denied on 4 May 1971.

On 22 June 1971, the United States Court of Military Appeals denied the applicant’s petition for a grant of review of his case.

The applicant was discharged under other than honorable conditions on 9 August 1971, pursuant to a duly reviewed and affirmed court-martial conviction. He had served 10 months and 4 days of total active service and had approximately 685 days of lost time due to AWOL and confinement.

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.

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 contentions of good post-service conduct have been noted by the Board. However, they are not sufficiently mitigating to warrant relief when compared to the seriousness of his offenses, his extensive absences over such a short period of time and his overall undistinguished record of service.

4. While the Board has noted that he was only 17 years of age at the time he enlisted, many soldiers of the same age successfully enlist and complete their obligations without incident. In his case, he demonstrated initially that he could endure the rigors of training because he successfully completed his training without incident. However, when faced with being transferred overseas, he decided that he no longer wanted to be in the Army.

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

__rjw____ __kf ____ __rvo ___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002074155
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/09/26
TYPE OF DISCHARGE	BCD
DATE OF DISCHARGE	1971/08/09
DISCHARGE AUTHORITY	GCM
DISCHARGE REASON	GCM
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 675	144.6800/A68.00
2.
3.
4.
5.
6.