MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 10 JUNE 2003
         DOCKET NUMBER: AR2002080266

         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. Kenneth H. Aucock		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 bad conduct discharge be upgraded to a general discharge.

APPLICANT STATES: In effect, the applicant states that he did not receive a rehabilitative transfer after his 1970 court-martial conviction. He was not given a fair chance to be a soldier.

COUNSEL CONTENDS: Counsel provided nothing beyond that provided by the applicant.

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

The applicant enlisted in the Army for three years on 3 February 1969. He completed training and in July 1969 was assigned as a track vehicle mechanic to Headquarters and Headquarters Company, 1st Battalion, 68th Armor, an 8th Infantry Division unit located in Baumholder, Germany.

The applicant was assigned to Company A of the above mentioned organization on 25 April 1970.

On 31 July 1970 orders were published by Headquarters, 8th Infantry Division, placing the applicant on TDY for approximately 110 days to train for and participate with the 1970 8th Division football team.

On 3 August 1970 the applicant was arraigned, tried, and pled guilty before a special court-martial to assaulting a commissioned officer, wrongfully communicating a threat to inflict bodily harm on that officer, and for breaking restriction. He was sentenced to be confined at hard labor for three months, forfeiture of $50.00 per month for six months, and reduction to the rank of private E-1. So much of the sentence in excess of the forfeiture of $50.00 per month for four months and reduction to the rank of private E-1 was suspended for four months by the convening authority.

On 4 November 1970 the applicant received nonjudicial punishment under Article 15, UCMJ, for being absent from his place of duty on two separate occasions.

On 2 December 1970 the applicant's commanding officer informed the applicant that he was recommending that he be barred from reenlisting. The applicant protested, stating that he did not want to be barred, that he had volunteered for duty in Vietnam, and did not see any reason why he should be barred. He stated that he was not being treated fairly.

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A 15 December 1970 report of psychiatric evaluation indicates that the applicant was referred under the provisions of Army Regulation 635-212. The examining psychiatrist stated that during nearly two years of service the applicant had adjusted well until about eight months ago when he was court-martialed for an assault with racial overtones. Since then he had received nonjudicial punishment and was pending another. The psychiatrist stated that the applicant believed most of his problems resulted from prejudice on the part of the first sergeant. The psychiatrist stated that the applicant was an average intelligent Negro man who related freely and cooperatively. He had mild anxiety and moderate depression, and had considerable anger and persecutory feelings. There was no evidence of psychosis, neurosis, organic brain disease or severe character defect. He stated that the applicant did not receive a transfer following his court-martial. He stated that he might resume adequate adjustment if he were transferred to a unit outside Baumholder. The psychiatrist stated that the applicant was psychiatrically cleared for an administrative action, but a rehabilitative transfer should be considered.

On 5 January 1971 the applicant received nonjudicial punishment under Article 15, UCMJ, for being absent from his place of duty, failure to go to his place of duty on three occasions, and for being disrespectful to an NCO. He appealed his punishment. His appeal was denied.

On 25 January 1971 the applicant received nonjudicial punishment under Article 15, UCMJ, for being absent from his place of duty on two occasions.

Undated statements, apparently prepared in early 1971, by the company motor officer, who stated that the applicant had worked as a mechanic for approximately 10 months; by the company first sergeant; and by the company commander; elicited numerous derogatory comments concerning the applicant, such as, "the worst soldier I have ever had … does hardly any work unless given a direct order… many times he goes on sick call or to see the legal officer and does not report back to duty … failed to appear for guard mount … I have counseled [the applicant] numerous times … unfit for military service … has been given numerous chances and continues to get in trouble …," and, "has been in some sort of trouble … bad influence on other men … area, clothing, and equipment not up to standards … negative attitude … missing from duty… counseled many times … involved in a racial confrontation … court martialed," and, "missing formation, sleeping through classes, missing guard mount, defacing unit property … intimidated the mess hall headcount … insubordination … cannot adjust to discipline of the military … should be eliminated from the service … requires constant and excessive supervision."

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On 1 March 1971 the applicant was arraigned and tried by a special court-martial that convened at Bad Kreuznach, Germany. He was found guilty of two counts of disrespect to a commissioned officer, of disobeying a lawful command from a commissioned officer, of disobeying a lawful order from an NCO, and of two counts of failing to go to his place of duty. He was sentenced to be discharged from the Army with a bad conduct discharge, to be confined at hard labor for five months, to forfeit $100.00 per month for five months, and to be reduced to the grade of private E-1. The command staff judge advocate reviewed the record of
trial, and recommended that the findings be approved, with a slight administrative modification. The convening authority so approved the findings.

The applicant's DA Form 20 (Enlisted Qualification Record) shows that he was in confinement from 24 February 1971 to 28 July 1971, after which he was reassigned to Fort Leonard Wood, Missouri. On 2 August 1971 he was authorized excess leave without pay and allowances pending his punitive discharge.

On 21 March 1972 the Court of Military Review affirmed the findings of guilty and the sentence as approved. On 2 May 1972 the sentence was ordered to be duly executed.

A 16 May 1972 report of medical examination shows that the applicant was medically qualified for separation with a physical profile serial of 1 1 1 1 1 1. In the report of medical history that he furnished for the examination the applicant stated that his health was good.

The applicant was discharged on 19 May 1972 under conditions other than honorable. He had 2 years, 10 months, and 11 days of service, and 155 days of lost time. His DD Form 214 shows that he was on excess leave from 2 August 1971 through 2 February 1972, and on 99 days excess leave subsequent to his normal ETS (expiration of term of service) from 3 February 1972 through 11 May 1972.

On 17 February 1976 the Army Discharge Review Board, in a majority opinion, denied the applicant's request to upgrade his discharge. On 13 August 1976 the Review Panel of the Army Discharge Review Board recommended that the majority vote be upheld. The finding and conclusion of the board were approved on 19 August 1976.

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Army Regulation 635-200 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.

Army Regulation 630-5, which establishes the policies and provisions for the administration of the Army’s leave program, states soldiers who have been sentenced by court-martial to a dismissal or punitive discharge, but whose sentence has not yet been approved, may submit a written request for voluntary excess leave. The requested leave may be approved if the GCMCA believes that the best interest of the service would be served by granting the request. Soldiers in an excess leave status are not entitled to pay and allowances, accrual of leave, or physical disability retirement should they become disabled while in an excess leave status.

Army Regulation 635-200, chapter 11, then in effect, established the provisions for separating soldiers with dishonorable and bad conduct discharges. It stated that a soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial after completion of appellate review and after such affirmed sentence had been ordered duly executed.

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. There is no evidence, and the applicant has not provided any, which confirms that his conviction by a special court-martial and the resulting sentence to a bad conduct discharge was in error or unjust. The Board notes the applicant's inference, that because he was not transferred after his first court-martial conviction, he was not given a fair chance to be a soldier. The Board also notes the 15 December 1970 recommendation by a psychiatrist concerning a rehabilitative transfer. Nonetheless, the applicant had the same opportunity as other soldiers. He himself committed the acts resulting in his punishments under Article 15, UCMJ, his court-martial conviction, and his sentence to a bad conduct discharge. The lack of a rehabilitative transfer does not mitigate the severity of the applicant's actions and behavior, nor is it sufficiently mitigating to warrant upgrading his discharge.

2. The applicant's contention that he was not given a fair chance to be a soldier, and as such should serve as a basis to justify upgrading his discharge, is without foundation.

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3. 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	AR2002080266
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030610
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.00
2.
3.
4.
5.
6.