MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 14 August 2003
         DOCKET NUMBER: AR2002080566

         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. Raymond V. O'Connor, Jr.		Chairperson
Mr. James E. Anderholm		Member
Ms. Linda M. Barker		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)

---

APPLICANT REQUESTS: That his dishonorable discharge (DD) be upgraded.

APPLICANT STATES: In effect, that the counsel who represented him was ineffective and did not represent him well. In support of his application, he submits a statement in his own behalf.

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

He enlisted in the Regular Army on 18 August 1964 for a period of 3 years. Following completion of all military training, the applicant was awarded military occupational specialty (MOS) 31M, Radio Relay and Carrier Operator, currently known as Multichannel Communications Systems Specialist.

On 11 March 1965, the applicant was assigned to Korea. He served without incident and earned excellent ratings in conduct and efficiency ratings. On 15 March 1966, he departed Korea enroute to the Continental United States. He was assigned to Fort Gordon, Georgia. He served at Fort Gordon until 14 June 1966 when he was assigned to Vietnam.

The applicant arrived in Vietnam on 3 July 1966. On the evening of 20 July 1966, when the applicant’s superior noncommissioned officer (NCO) and two other sergeants entered the room where he was sleeping, the applicant inquired of them if they were discussing his being drunk and messing up on his first duty assignment. The sergeants assured him that he was not the topic of their conversation. The applicant was not convinced and the NCO assured him once again that he was not the topic of their conversation. The applicant then began to talk about transferring to the First Cavalry Division and he was advised by the NCO to make the request through proper channels. The applicant informed the NCO that he would not perform his duty that night if he could not be transferred to the First Cavalry Division. The NCO held to his position that the applicant would perform his duties and the applicant held that he would not and left the room.

On the same night the applicant proceeded to his place of duty, picked up a M-14 weapon, and forced a specialist, who shared duties with the applicant to go with him while threatening to kill the specialist. The applicant fired one shot through the entrance to his room, thereby, striking and killing the NCO immediately. He fired two more shots into the room. The specialist tried to get away; however, the applicant ran after him and recaptured the specialist. The applicant informed the specialist that he had planned to kill the NCO ever since the Monday after his drunken blunder. He felt the NCO had a grudge against him and that was why the NCO would not let the applicant transfer.

Although he pled not guilty to each charge, on 21 September 1966, a general court-martial convicted him of one specification of premeditated murder, two specifications of assault with the intent to commit murder, and one specification of assault with a dangerous weapon. He was sentenced to a dishonorable discharge, confinement at hard labor for the rest of his life, total forfeiture of all pay and allowances, and reduction to private/E-1. On 31 October 1966, the convening authority approved the sentence as adjudged. Accordingly, the applicant was confined to the United States Army Disciplinary Barracks (USDB) Fort Leavenworth, Kansas.

On 13 March 1967, defense counsel submitted a motion to the Board of Review in the Office of The Judge Advocate General of the Army for a psychiatric examination of the applicant. On 10 April 1967, the Board of Review granted the requested motion.

On 8 November 1967, the Board of Review in the Office of The Judge Advocate General of the Army, reversed the findings of the court-martial, dismissed the original charge of assault with a dangerous weapon, but affirmed the lesser-included offenses of unpremeditated murder, and two assaults with a dangerous weapon. The length of confinement was reduced to 25 years. On 22 March 1968 the United States Court of Military Appeals affirmed the decision of the Board of Review.

On 9 April 1968, the sentenced as modified through the appeal process was ordered executed. On 29 April 1968, the applicant was discharged under the provisions of Army Regulation 635-204 with a Dishonorable Discharge. He was credited with 1 year, 11 months, and 3 days of creditable military service. He had 102 days’ lost time due to pre-trial confinement, 291 days’ lost time prior to expiration term of service (ETS) and 256 days’ lost time subsequent to normal ETS. His DD Form 214 reflects he was discharged as a result of general court-martial with an RE code of RE-3.

In May 1970, the Army and Air Force Clemency and Parole Board remitted the sentence to confinement in excess of 20 years.

On 20 December 1972, the applicant was paroled from the USDB. The term of the parole was effective until 20 September 1986 unless sooner suspended or revoked for violation of its conditions or otherwise terminated by competent authority.

In March 1974, the Army and Air Force Clemency and Parole Board remitted the sentence to confinement in excess of 19 years.

In January 1975, the Army and Air Force Clemency and Parole Board remitted the sentence to confinement in excess of 16 years.

In March 1978, the Army and Air Force Clemency and Parole Board remitted the sentence to confinement in excess of 12 years.

Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, United States Code, Section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records is not empowered to change a discharge due to matters, which should have been raised in the appellate process. The Board 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 applicant's contentions relate to evidentiary and procedural matters, which were finally and conclusively adjudicated in the court-martial appellate process, and furnish no basis for recharacterization of the discharge.

3. The evidence of record clearly shows that the applicant was adjudged guilty by court-martial and that the convening authority approved the sentence. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed. The Board finds no reason to grant clemency in this case.

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.

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

__rvo___ __jea___ __lmb___ DENY APPLICATION

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

---

INDEX

CASE ID	AR2002080566
SUFFIX
RECON
DATE BOARDED	20030814
TYPE OF DISCHARGE	DD
DATE OF DISCHARGE	19680429
DISCHARGE AUTHORITY	AR 635-204
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	100.0200
2.
3.
4.
5.
6.