MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 15 April 2003
         DOCKET NUMBER: AR2003084737

         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. Luis Almodova		Analyst

The following members, a quorum, were present:

Ms. Joann H. Langston		Chairperson
Mr. Richard T. Dunbar		Member
Ms. Yolanda Maldonado		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 effect, that his dishonorable discharge be upgraded to an under honorable conditions (general) discharge.

APPLICANT STATES: In effect, that the convening authority wanted him to be dismissed from the service and was biased and impartial (sic). He believes that a lesser discharge would have been more appropriate.

In a letter addressed to the Board, the applicant adds, in effect, that while he was stationed in Korea, there was just cause for him to be court-martialed and at that time, the discharge he received was appropriate, but now, it would be inappropriate. He admits that he was deemed to be unable to adapt to military life, but in his opinion, he should have been given a lighter sentence and a general discharge. He points out that his defense counsel "was not familiar with the proceedings and was so called, lost in the proceedings half the time." He concludes that he has managed to put together a good life for the past 30 years and is proud of it, except for the discharge. While his attitude at one time was insufferable, it is now just the opposite.

The applicant submitted a copy of his DD Form 214 for the period 21 November 1958 through 26 February 1961 and for the period from 27 February 1961 through 20 July 1963, and 5 letters of recommendation, which contain references to his character and work ethic.

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

The applicant enlisted for 3 years in the Regular Army on 21 November 1958 and reenlisted for 6 years on 27 February 1961 while stationed at Fort Devens, Massachusetts.

On 18 April 1961, he was reassigned to duty in Korea. He arrived in Korea and was assigned to Headquarters and Headquarters Company, 11th Engineer Battalion (Construction), on 26 April 1961.

The applicant was promoted to Private First Class, E-3, on 8 August 1961. This would be the highest rank and grade that the applicant would achieve during his Army service.

On 13 April 1960, the applicant was convicted by a Special Court-Martial of
1 charge and 3 specifications of violation of Article 92 of the Uniform Code of Military Justice (UCMJ), Failure to Obey Order or Regulation, in that he violated transfer restrictions of merchandise to a Korean National, accepted Military

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Payment Certificates from a Korean National, and acquired restricted items in excess of his need with intent to make an unauthorized transfer. The applicant was sentenced to reduction to the rank and pay grade of Private, E-1; to forfeit $50.00 per month for 6 months and to be confined at hard labor for 6 months. The sentence was approved on 16 April 1960.

On 12 May 1960, the special court-martial convening authority suspended the unexecuted portion of the sentence, to be confined at hard labor for 6 months, for 5 months.

On 13 November 1961, the applicant was convicted by a Special Court-Martial of absenting himself without proper authority (AWOL) from his unit from 1 October 1961 until 6 October 1961. The applicant was sentenced to confinement at hard labor for 4 months, to forfeit $45.00 for 4 months, and to be reduced to Private, E-1. The convening authority approved the sentence on 14 November 1961; but, that portion of the sentence, which provided for confinement of the applicant for
4 months, was suspended for 4 months.

On 22 August 1962, the applicant was convicted by a General Court-Martial of
1 charge and 3 specifications of violation of Article 121 of the UCMJ, Larceny, in that on or about 21 February 1962, he stole a fuel tanker truck; 1,000 gallons of aviation fuel; that on or about 6 April 1962, a centrifugal, gasoline engine driven pump; and on or about 19 April 1962, a 1/4 ton utility truck; the property of the United States. The applicant was sentenced to be dishonorably discharged from the service, to forfeit all pay and allowances, and to be confined at hard labor for 5 years. The sentence was approved on 11 October 1962. The convening authority ordered that the applicant be transferred to the US Disciplinary Barracks, Fort Leavenworth, Kansas, for confinement pending completion of appellate review.

On 22 April 1963, Headquarters, Fort Leavenworth, published General Court-Martial Order Number 252. The sentence that was imposed on the applicant on 22 August 1962 and approved on 11 October 1962, to be dishonorably discharged from the service, to forfeit all pay and allowances, and to be confined at hard labor for 5 years, was affirmed in this order. Article 71(c) having been complied with, the sentence was to be duly executed.

The applicant was dishonorably discharged on 20 July 1963 in the rank and pay grade, Private, E-1, under the provisions of Army Regulation 635-204, pursuant to an approved sentence of a general court-martial imposing a dishonorable

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discharge. On the date of his discharge, he had completed 1 year, 7 months and 4 days service on his current enlistment and 2 years, 2 months and 7 days service during his enlistment period prior to his reenlistment. The applicant had 354 days lost due to AWOL and confinement.

On 16 August 1963, the applicant, a person in the custody of the US Army serving a sentence imposed by a court-martial, was convicted by a Special Court-Martial of violating the conditions of his parole on 20 July 1963 by leaving the Fort Leavenworth Military Reservation. He was sentenced to be confined at hard labor for 3 months. The convening authority approved the sentence on
28 August; but the execution thereof was suspended until he was released from confinement.

On 15 August 1964, the applicant was released on parole from the US Disciplinary Barracks, Fort Leavenworth. He was to remain on parole until 21 August 1967.

On 21 October 1964, the Mecklenburg County Sheriff's Office, Boydton, Virginia, notified the Army that the applicant had been found guilty of breaking and entering. He was sentenced to 3 years confinement to be served in the Virginia State Penitentiary, Richmond, Virginia. Upon receipt of this notification, the Army placed a detainer on the applicant and asked that he be returned to military control upon completion of his sentence in that state for violating the conditions of his parole. The applicant's parole was suspended by the Army effective
20 October 1964 and was revoked on 16 November 1964.

On 6 December 1966, the applicant was returned, by the State of Virginia, to the US Disciplinary Barracks, Fort Leavenworth, to resume the serving of his sentence.

On 8 December 1967, the applicant was notified that clemency had been approved for him which authorized remission of so much of the sentence to confinement as is in excess of 4 years, which was adjudged 22 August 1962.

The applicant was released from confinement on 19 April 1968 at the expiration of his sentence.

Army Regulation 635-204 sets forth the basic authority for the separation of enlisted personnel. This regulation provides that a soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial empowered to impose a dishonorable discharge. The appellate review must be completed and the sentence affirmed before the sentence can be ordered duly executed. Army Regulation 635-200, defines a general discharge

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as a separation from the Army under honorable conditions. When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for separation specifically allows such characterization.

Title 10, United States Code, section 1552, as amended does not permit any redress by this Board which would disturb the finality of a court-martial conviction. The Board is empowered to address the sentence and/or the characterization of service resulting from a court-martial conviction. The Board may elect to change the sentence and/or the characterization of service if clemency is determined to be appropriate. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the sentence 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 evidence of record confirms that the applicant's trial by court-martial was warranted by the gravity of the offenses charged. Conviction and discharge were effected in accordance with applicable laws and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.

2. By law, any redress, by this Board, of the finality of a court-martial conviction, is prohibited. The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the punishment.

3. The Board carefully considered the applicant's entire record of service and his post service conduct; however, given the seriousness of the offenses for which he was convicted, the Board finds that these factors are not sufficiently meritorious or mitigating to warrant clemency in this case.

4. 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

__jhl___ __rtd___ __ym____ DENY APPLICATION

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

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INDEX

CASE ID	AR2003084737
SUFFIX
RECON
DATE BOARDED	20030415
TYPE OF DISCHARGE	DD
DATE OF DISCHARGE	19630720
DISCHARGE AUTHORITY	AR 635-204
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	105.0000
2.
3.
4.
5.
6.