MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 14 January 2003
         DOCKET NUMBER: AR2002075514

         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. Rosa M. Chandler		Analyst

The following members, a quorum, were present:

Ms. Margaret K. Patterson		Chairperson
Ms. Jennifer L. Prater		Member
Ms. Mae M. Bullock		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 a general discharge under honorable conditions.

APPLICANT STATES: That in 1971, at age 18, he joined the Army with the intention of proudly serving his country and of making the military a career. In hindsight, he realizes that in 1971, the Army was in the final stages of ending segregation. Nevertheless, in 1971, the military was still plagued with unwritten, institutionalized policies of discrimination and racism. There were some who resisted change and he had to continuously defend himself. He was faced with overwhelming odds as he tried to fulfill his goals, and military duties. While fighting for his civil rights and protesting prejudicial treatment, he was confused to say the least. He believes that volatile circumstances and events contributed to him being separated with a BCD. On 24 July 1972, there was a racially motivated disturbance involving approximately 200 service members. The military police responded and several service members were injured. The events of 24 July 1972 spilled over into 25 July 1972, the day that he allegedly injured another service member. He was in the area of the injured service member on 25 July 1972, because he shared an apartment with a Korean woman in that area and he had personal things to attend to on that date. He tried to avoid military police in the area, but he was caught and charged with being in a restricted area. He contends that he did not have a weapon, he was not wearing a brown leather maxi coat in Korea, in the month of July and that he did not stab anyone on the date that the serviceman was injured. He believes that he was used as a scapegoat because he was a serviceman caught in an off limits area. Since being discharged his life has been a living hell. He chose not to conceal his past; therefore, he has been denied work, many social, economic and personal opportunities. He believes that the BCD that he received is not fair and proper due to the above reasons and extenuating circumstances. He prays that the Board will upgrade his discharge and free him to move above and beyond the unfortunate incident that has haunted him to this day.

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

That on 12 July 1971, he enlisted in the Regular Army for a period of 2 years.

On 13 October 1971, while the applicant was assigned to Fort Polk, Louisiana, for advanced individual training, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for failure to go to his appointed place of duty at the time prescribed on 5 October 1971. His punishment included forfeiture of $20.00 pay for 1 month and 7 days of restriction and extra duty.



The applicant completed all training requirements and was awarded military occupational specialty (MOS) 57A, Supply Clerk. On 12 November 1971, he left Fort Polk in a casual leave status en route to Fort Lewis, Washington, for further assignment to Korea.

On 6 December 1971, the applicant failed to report to Fort Lewis and was classified as absent without leave (AWOL). He remained in an AWOL status until he returned to military control at Fort Knox, Kentucky, on 27 February 1972. He was assigned to the Personnel Control Facility (PCF) at Fort Knox from 28 February-21 March 1972. Court-martial charges were preferred against him for being AWOL.

On 13 March 1972, while the applicant was assigned to the PCF, he accepted NJP for shoplifting a pair of swimming trunks of a value of $5.50, the property of the Fort Knox Post Exchange. His punishment included forfeiture of $100.00 pay for 1 month and an oral reprimand.

On 21 March 1972, the applicant was convicted by a special court-martial (SPCM) of being AWOL from 6 December 1972-27 February 1973. His sentence included reduction from pay grade E-2 to pay grade E-1, confinement at hard labor for 60 days, and forfeiture of $75.00 pay per month for 4 months.

On 14 April 1972, the applicant was assigned to Korea, he reported there on/about 8 May 1972. On 12 October 1972, the applicant was convicted by a SPCM of committing an assault upon a specialist four by cutting him in the abdomen with a dangerous weapon, a knife. He was sentenced to receive a BCD, to be confined at hard labor for 6 months, and forfeitures of $192.00 pay per month for 6 months.

On 19 December 1972, while confined at the US Disciplinary Barracks, Fort Leavenworth, Kansas, the applicant indicated that he did not desire restoration to duty. On 6 February 1973, he was denied clemency.

On 28 February 1973, the convening authority approved the adjudged sentence. The record of trial was forwarded to the United States Army Court of Military Review for appellate review. On the same date, the applicant was released from confinement and placed on excess leave pending completion of the appellate process.

On 7 May 1973, the United States Court of Military Review affirmed the findings and approved the sentence and the appropriate authority ordered the BCD to be duly executed.



On 30 November 1973, the applicant was discharged in absentia under the provisions of chapter 11 (currently chapter 3), Army Regulation 635-200, with a BCD as a result of his conviction in a trial by court-martial. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows that he completed 1 year and 6 months of active military service and he had 321 days of lost time due to being AWOL and in military confinement.

On 12 June 1983, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

Court-martial convictions stand as adjudged or modified by appeal through the judiciary process. In accordance with Title 10, United States Code, Section
1552, the authority under which this Board acts, the ABCMR is empowered to change the severity of the sentence imposed in the court-martial process 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. 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. 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.

3. The Board noted that there is no evidence of discrimination or prejudicial treatment in the applicant's case, nor has the applicant provided any. Rather, he continuously engaged in misconduct which ultimately resulted in his conviction in a trial by court-martial and his separation with a BCD.

4. 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

__mkp___ __jlp___ __mmb___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002075514
SUFFIX
RECON
DATE BOARDED	20030114
TYPE OF DISCHARGE	(BCD)
DATE OF DISCHARGE	19731130
DISCHARGE AUTHORITY	AR635-200, Chap 11
DISCHARGE REASON	A68.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	144.6800
2.
3.
4.
5.
6.