MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 7 November 2002
         DOCKET NUMBER: AR2002075172

         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. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor, Jr.		Chairperson
Mr. Thomas B. Redfern, III		Member
Mr. Donald P. Hupman, Jr.		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 be upgraded to honorable.

APPLICANT STATES: That, prior to his discharge, he was placed on excess leave. While on excess leave, his unit mailed papers to his home asking him to make an election to either stay in the Army or be discharged. His father, who at that time had an alcohol problem, mistakenly signed the papers not knowing what he was signing. When he returned to his unit, he was informed that he was being discharged because he had elected to do so. He contested the decision and was told it was too late to make a change. He believes that if he had been given an opportunity to remain on active duty he could have corrected his duty performance and conduct and would have been awarded an honorable discharge. He believes that his duty performance and conduct were not satisfactory because he enlisted at a very young age. It was difficult for him to adjust at first, but he did so. His first enlistment ended with an honorable discharge in the rank of Sergeant. Since his last board hearing, he has been a model citizen.

As supporting evidence, the applicant provides his Armed Forces of the United States Report of Transfer or Discharge, DD Form 214, and an affidavit from his father attesting to the fact he signed the papers meant for the applicant.

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

He was born on 14 November 1951. He enlisted in the Regular Army on 8 September 1969. On 16 January 1970, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for failing to go to his appointed place of duty. He was promoted to Sergeant, E-5 on 1 April 1972. He was honorably discharged on 21 May 1972 for the purpose of immediately reenlisting on 22 May 1972.

On or about 12 December 1974, the applicant stole $400.00, the property of another soldier.

On 19 December 1974, the applicant accepted NJP under Article 15, UCMJ for sleeping on duty as the battery duty noncommissioned officer.

On 21 February 1975, the applicant accepted NJP under Article 15, UCMJ for intent to defraud (using another's meal card to eat a meal in the mess hall without paying for it even though he knew he was on separate rations).

On 14 July 1975, while assigned to Germany, the applicant was convicted by a special court-martial of stealing $400.00 from another soldier. Testimony at the trial revealed that the other soldier had given the First Sergeant $400.00 for safekeeping. The First Sergeant could not get into the safe so he locked the money in his desk drawer. When the applicant shortly thereafter had charge of quarters duty, he opened the First Sergeant's desk drawer searching for a red pen. He saw an envelope with money in it in the drawer and he took the envelope and money. The applicant testified that he needed the money to pay his girlfriend's civil fine and intended to pay the money back. Testimony also revealed that he initially denied taking the money and did not return the money until several months later after he had been charged with the crime of larceny. He was sentenced to a bad conduct discharge, to be confined at hard labor for 100 days, and to be reduced to the lowest enlisted grade.

The applicant was in military confinement from 14 July - 30 September 1975.

On or about 15 October 1975, the applicant was returned to duty and assigned to Fort Bragg, NC pending completion of appellate review of his sentence.

On 20 October 1975, the U. S. Army Court of Military Review affirmed the findings of guilty and the sentence.

On 14 November 1975, the applicant accepted NJP under Article 15, UCMJ for failing to go to his appointed place of duty.

The applicant departed absent without leave (AWOL) from 7 - 8 December 1975.

On 16 December 1975, the applicant accepted NJP under Article 15, UCMJ for failing to go to his appointed place of duty.

The applicant departed AWOL from 12 - 14 January 1976.

On 15 January 1976, the applicant acknowledged receipt of a copy of the U. S. Army Court of Military Review decision. He was advised of his right to petition the Court of Military Appeals for a grant of review.

On 30 January 1976, the applicant was placed on excess leave pending completion of appellate review.

By message dated 2 June 1976, the U. S. Army Judiciary informed Fort Bragg that the applicant had failed to file a petition for grant of review within the appeal period and requested a final special court-martial order be published.

By letter dated 25 June 1976, the applicant was informed that he was to be released from the Army. Available records showed that he had not completed the required separation physical examination. He was directed to return to Fort Bragg not later than 8 July 1976 to undergo a complete physical examination. The receipt for this letter appears to have been signed by the applicant's father.
Special Court-Martial Order 48, Headquarters, XVIII Airborne Corps and Fort Bragg dated 11 June 1976 ordered the applicant's sentence to be executed. Pursuant to that order, the applicant was discharged on 15 July 1976, in pay grade, E-1, with a bad conduct discharge. He had completed a total of 6 years, 7 months, and 16 days of creditable active service and had 249 days of lost time.

In 1979 the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge. During a personal hearing, he informed the ADRB that he was supposed to get a separation physical but did not get notified as his father intercepted the notice while he was on excess leave. He felt a good final physical might have shown his drug abuse (he used heroin in Germany). The ADRB denied his request on 28 November 1980.

Army Regulation 635-200 governs the separation of enlisted personnel. In pertinent part, it states that an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. A general discharge is a separation from the Army under honorable conditions. It is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

Title 10, U. S. Code, section 1552(f) provides that, with respect to records of courts-martial and related administrative records pertaining to court-martial cases, corrective action may be extended to action on the sentence of a court-martial for purposes of clemency.

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. 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.

2. The applicant had been sentenced to a punitive discharge. There is no evidence of record and he provides none to show that he had ever been offered the opportunity to elect a voluntary, administrative discharge. It appears the letter he contends offered him this opportunity was actually a letter requiring him to report for a separation physical examination.

3. It is noted that the applicant was 17 years old when he enlisted; however, despite one record of NJP for a minor infraction he successfully completed his initial period of service and attained the rank of Sergeant. His more serious misconduct began when he was 23 years old, by then an experienced soldier and no longer young.

4. Regarding the misconduct for which the applicant was discharged, trial by court-martial was warranted by the gravity of the offense 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. The Board determined that clemency in the form of either an honorable discharge or a general discharge under honorable conditions was not warranted in this case.

5. While the Board has taken cognizance of the applicant's good post-service conduct, this factor does not warrant the relief requested.

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

__RVO__ __TBR _ __DPH __ DENY APPLICATION

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

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INDEX

CASE ID	AR2002075172
SUFFIX
RECON
DATE BOARDED	2002/11/07
TYPE OF DISCHARGE	BCD
DATE OF DISCHARGE	1976/0715
DISCHARGE AUTHORITY	. . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	105.01
2.
3.
4.
5.
6.