MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 10 June 2003
         DOCKET NUMBER: AR2002076235

         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
Mrs. Carolyn G. Wade		Analyst

The following members, a quorum, were present:

Mr. Samuel A. Crumpler		Chairperson
Ms. Shirley L. Powell		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: That his clemency discharge be upgraded to honorable.

APPLICANT STATES: In effect, that he was a good soldier until he departed his unit absent without leave (AWOL) and that his period of AWOL should not characterize his whole period of service. He also states that he served his time in the United States Disciplinary Barracks (USDB); that he did not let the negative comments deter him from trying to better himself; that he married and had two sons, whom he raised alone after his wife left him.

In support of his application, the applicant submitted: 20 letters of character reference from family, friends, and former employers attesting to his good character as a citizen, father, employee, and friend; a police records check from Ontario County (New York) indicating he has no criminal record; a police records check from New York State reflecting one petty larceny arrest in 1986; two letters from two Department of Veteran Affairs (VA) psychologists; a copy of his Purple Heart Citation; a copy of his Record of Trial by Court-Martial; a copy of his DD Form 214 (Report of Separation from Active Duty); a copy of DD Form 215 (Correction to DD Form 214); and his application for review by the Presidential Clemency Board.

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

He enlisted in the Regular Army on 23 August 1966 for a period of 3 years. Following completion of basic combat training and advanced individual training, he was awarded military occupational specialty (MOS) 76Y, Supply Clerk, and was transferred to Fort Benning, Georgia to attend Airborne School. Following completion of Airborne School, he was awarded the Parachutist Badge and was assigned to Fort Bragg, North Carolina.

On 11 September 1967, the applicant departed Fort Bragg en route to Fort Knox, Kentucky. He was assigned to Company D, 2nd Battalion (Airborne), 501st Infantry, 101st Airborne Division. He was assigned in MOS 11B, Rifleman.

On 1 October 1967, the applicant ‘s unit was ordered to the Republic of South Vietnam. He arrived there with his unit on 16 December 1967 and remained with this unit until 14 June 1968 when he was transferred to Company B, 3rd Battalion (Airborne), 506th Infantry, 101st Airborne Division.

Shortly after his arrival at B Company, he sustained a shrapnel wound to his left leg while engaging the enemy in combat and he was medically evacuated to the 12th Evacuation Hospital in Cam Rahn Bay, South Vietnam, for treatment. While

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at the hospital, he underwent an operation on his ears for high frequency hearing loss and a related surgery on his nose. The applicant was released from the hospital and returned to his unit.

On 11 October 1968, the applicant departed his unit in an AWOL status. The applicant remained AWOL in South Vietnam for approximately 43 months. On 31 May 1972, the applicant called his brother requesting that he meet him at the airport in Syracuse, New York.

On 12 August 1973, the applicant was apprehended by military police for being AWOL from the Army. On 17 August 1973, he was placed in pre-trial confinement at the Fort Dix (New Jersey) Area Confinement Facility.

The applicant was charged with being AWOL from on/about 11 October 1968 to 12 August 1973. The applicant was advised of his rights and elected trial by military judge alone.

On 18 October 1973, the applicant was convicted by a general court-martial of being AWOL from 11 October 1968 to 12 August 1973. He was sentenced to a bad conduct discharge (BCD), confinement at hard labor for 6 months, and reduction to private/E-1. The applicant’s detailed military counsel submitted a letter on the applicant’s behalf requesting clemency. He requested that the applicant’s BCD be suspended and that the accused be restored to duty at the conclusion of his confinement. The military judge, considering the applicant’s service history prior to his AWOL and his 10 months service in South Vietnam, recommended that the BCD be suspended during the applicant’s period of confinement.

On 29 November 1973, the sentence was approved and the applicant was confined to the United States Disciplinary Barracks (USDB), Fort Leavenworth, Kansas.

On 12 March 1974, the applicant was released from the USDB on excess leave pending completion of the appellate review. On 11 July 1974, the United States Court of Military Review affirmed the sentence.

On 12 December 1974, the applicant was discharged from the Army under the provisions of Army Regulation 635-200 with a BCD. He was credited with 2 years, 9 months, and 22 days of creditable military service and 316 days of lost time prior to expiration of his term of service (ETS), and 1662 days subsequent to ETS.

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On 4 January 1977, the applicant was issued a Clemency Discharge pursuant to Presidential Proclamation Number 4313.

Army Regulation 635-200, then in effect, stated that an enlisted person would be discharged with a BCD pursuant only to an approved sentence of a general or special court-martial imposing a BCD.

Presidential Proclamation Number 4313 was issued by President Ford and affected three groups of individuals. These groups were: (1) Fugitives from justice who were draft evaders; (2) Members of the Armed Forces who were in an unauthorized absence status; and, (3) Prior members of the Armed Forces who had been discharged with a punitive or undesirable discharge for violation of Articles 85, 86, or 87 of the Uniform Code of Military Justice. It provided an opportunity for deserters to work their way back into American society.

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 offense 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. It is noted that the applicant's creditable Vietnam service was considered by the court in arriving at a decision and sentence.

2. The Board carefully reviewed all of the applicant’s faithful and honorable service as well as his misconduct. The Board determined that being AWOL for approximately 4 years adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline. This incident of misconduct clearly diminished the quality of the applicant’s service below that meriting an upgrade to a general or fully honorable discharge.

3. The Board acknowledges the applicant's successful transition to civilian life and noted the many accomplishments outlined in his application and/or in the documents submitted with his application. However, in review of the applicant’s entire service record, the Board found that these accomplishments did not overcome the reason for discharge and characterization of service granted.

4. 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.

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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

___sac__ __slp___ __jtm___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002036235
SUFFIX
RECON
DATE BOARDED	20030610
TYPE OF DISCHARGE	BCD
DATE OF DISCHARGE	19741212
DISCHARGE AUTHORITY	AR 635-200, Chap 11
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	144.9405
2.	144.9201
3.
4.
5.
6.