MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 7 August 2003
         DOCKET NUMBER: AR2002082132

         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. Arthur A. Omartian		Chairperson
Mr. Thomas B. Redfern, III		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: In a rambling statement, that the Board, in effect, upgrade his characterization of service, and that he be provided any job referrals.

APPLICANT STATES: In effect, that he was a good soldier and served honorably for as long as he could. He states that, due to personal problems, he departed his unit AWOL (absent without leave) and remained absent until he was able to get the situation under control. He states that he was not allowed to exercise his right to testify in his own behalf and neither was his wife allowed to testify. He states that a chaplain should have been at the trial. He states that he was going through a lot of stress and his hardships were not taken into consideration. He states that he voluntarily returned to military control to accept whatever the punishment was for his going AWOL. He states that he was not properly represented. He states that his wife died in 1980 and he would like to serve the military or his country to the best of his ability.

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

He was inducted into the Army of the United States on 22 May 1968 for a period of 2 years. On 16 May 1968, while in basic combat training (BCT), the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code Of Military Justice, for being AWOL from 15-18 June 1968. His punishment consisted of forfeiture of $12.00 pay per month for one month and 14 days' restriction and extra duty.

The applicant again departed BCT in an AWOL status on 29 June 1968 and remained absent until 28 November 1969 when he voluntarily returned to his unit. On 8 January 1970, the applicant was charged with one specification of AWOL from 29 June 1968 to 27 November 1969.

On 5 February 1970, the applicant accepted NJP for departing his unit AWOL on 1 February 1970 and remaining absent until 5 February 1970. His punishment consisted of forfeiture of $17.00 pay per month for one month and 14 days' restriction and extra duty.

On 16 February 1970, the applicant, appearing before a military judge only, pled guilty to the charge of AWOL. He was convicted by a general court-martial of the above charge and was sentenced to a Bad Conduct Discharge (BCD), 9 months’ confinement at hard labor, and total forfeiture of all pay and allowances. The sentence was approved on 10 March 1970, but only so much of the sentence as provided for a BCD, 9 months’ confinement at hard labor, and forfeiture of $40.00 pay per month for 9 months was ordered executed as adjudged, except for the BCD. The applicant was confined to the United States Disciplinary Barracks, Fort Leavenworth, Kansas.

On 17 April 1970, the appellate review was completed, the sentence was affirmed, and the BCD was ordered executed.

On 29 June 1970, the applicant was discharged with a BCD pursuant to his sentence by general court-martial. He was credited with 3 months and 23 days of active military service and 619 days of lost time due to AWOL and confinement.

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. The appellate review must be completed and the affirmed sentence ordered duly executed.

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. The Board accepts that the applicant had personal (marital/family) problems; however, there were avenues available to him to seek assistance through his chain of command, his chaplain, or the family advocacy program. His problems did not excuse the offense of AWOL.

2. The Board noted that the applicant pled guilty before a military judge alone and did not indicate that he wanted to testify. However, the evidence of record shows that his wife did testify at his court-martial. She attested that she had an ex-boyfriend who was extremely jealous and prone to violence and that the applicant departed his unit AWOL in an attempt to keep her safe because of the ex-boyfriend’s constant harassment and threats.

3. The record does not support and the applicant has not presented any evidence that his counsel was ineffective or that a chaplain should have been present at his court-martial. Additionally, there is no indication in the record to suggest that the applicant’s rights were violated.

4. The Board does not upgrade discharge to improve job opportunities, nor does it provide job information to assist applicants in their search for a job.

5. 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.

6. 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 by the court-martial. After a thorough review of the applicant’s record and any issues submitted, the Board found no cause for clemency and no need for the applicant to return to active duty.

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

__aao___ __tbr___ __mmb___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002082132
SUFFIX
RECON
DATE BOARDED	20030807
TYPE OF DISCHARGE	BCD
DATE OF DISCHARGE	19700629
DISCHARGE AUTHORITY	AR 635-200, Chap 11
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.0200
2.
3.
4.
5.
6.