MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 8 May 2003
         DOCKET NUMBER: AR2002079464

         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. Samuel A. Crumpler		Chairperson
Mr. Mark D. Manning		Member
Mr. Robert Duecaster		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: In effect, that he had a mental disorder at the time that was brought to the attention of his superiors; however, they did nothing to help him. He further states that he was hearing voices that were telling him to do the things he did and should have received help from the Army. In support of his applications he submits a copy of a page from his medical records dated 4 August 1978 and three letters of support from family members indicating that he wrote home while in the service about the voices he was hearing and that he came back home a changed person.

COUNSEL CONTENDS: In effect, that the applicant's 4 August 1978 document from his medical records indicate the applicant was suffering from a mental disorder and that his command failed to recognize and treat the disorder before he got in trouble. Accordingly, his discharge should be upgraded.

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

He enlisted in the Regular Army on 9 November 1977, for a period of 3 years, training as a radio teletype operator, and assignment to Korea. He successfully completed his training and was transferred to Korea on 19 May 1978.

On 23 August 1978, nonjudicial punishment (NJP) was imposed against him for wrongfully possessing a forged Letter of Authorization (document used to purchase controlled items from the exchange), wrongfully possessing a ration control plate belonging to another soldier and wrongful possession an identification card belonging to another soldier. His punishment consisted of a reduction from the pay grade of E-2 to the pay grade of E-1, a forfeiture of pay, extra duty and restriction.

On 12 September 1978, NJP was imposed against him for stealing a case of C-Rations. His punishment consisted of a forfeiture of pay, extra duty and restriction for 45 days.

On 26 September 1978, NJP was imposed against him for breaking restriction. His punishment consisted of a forfeiture of pay.

On 29 December 1978, he was convicted by a special court-martial of stealing a stereo belonging to another soldier. He was sentenced to confinement at hard labor for 3 months, a forfeiture of pay and a BCD. In the Post-Trial Review of the court-martial proceedings, the command Staff Judge Advocate (SJA) noted that the applicant had the requisite mental capacity at the time of the trial and at the time that the offense was committed. The Post-Trial Review was provided to the Defense Counsel who elected not to make comments.

On 11 June 1979, the applicant was convicted by a special court-martial of two specifications of failure to go to his place of duty and of being absent without leave from 1 May to 10 May 1979. He was sentenced to confinement at hard labor for 15 days and a forfeiture of pay.

On 24 May 1979, the United States Army Court of Military Review (USACMR) affirmed the findings and sentence as approved by the convening authority.

He was transferred to the Army Retraining Brigade at Fort Riley, Kansas, on 20 June 1979, to serve his confinement.

On 10 September 1979, the United States Court of Military Appeals denied his petition for a grant of review of the decision of the USACMR.

Accordingly, he was discharged with a BCD on 30 November 1979, pursuant to a duly reviewed and affirmed court-martial conviction. He had served 1 year, 8 months and 17 days of total active service and had 125 days of lost time due to AWOL and confinement.

The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 1 September 1987. He contended at that time that he was under the influence of drugs and that he was sorry for what he did. The ADRB denied his application by unanimous vote on 5 May 1988.

The documents submitted by the applicant with his application consists of a copy of a page from his medical records indicating that the applicant went to the troop medical clinic on 14 August 1978 and complained that after being in country 3 months, he was having dreams of Koreans and his first sergeant killing him for a week and that he could see the funeral. When he woke up he was standing elsewhere. There is no indication of any treatment prescribed or follow-up. However, all of his medical records are not present in the available records.

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 have been noted by the Board. However, they are not sufficiently mitigating to warrant relief when compared to the seriousness of his offense and his overall undistinguished record of service.

4. While the single page from his medical records are indicative that the applicant sought help for the dreams he was having, the Board does not have the advantage of viewing his entire medical records to view his entire medical history to ascertain if he was deemed mentally responsible to be tried by court-martial. However, in the Post-Trial Review the SJA noted that the applicant was deemed mentally responsible, which would indicate that he underwent a mental status evaluation prior to trial by court-martial. The Board also notes that the applicant's counsel did not challenge the mental responsibility of the applicant nor did he use it in his defense.

5. The applicant subsequently admitted to the ADRB that he was under the influence of drugs when he committed the offense for which he was discharged and expressed his remorse, which was contrary to his original plea of not guilty. Therefore, in the absence of evidence to show that he was in fact not mentally responsible for his actions, the Board finds no basis to grant him an upgrade of his discharge.

6. 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.

7. 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

__mdm__ _sac ____ __rd ____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002079464
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/05/08
TYPE OF DISCHARGE	(BCD)
DATE OF DISCHARGE	1979/11/30
DISCHARGE AUTHORITY	AR635-200/CH11/SPCM
DISCHARGE REASON	SPCM
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 675	144.6800/A68.00
2.
3.
4.
5.
6.