MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE:
         DOCKET NUMBER: AR2003085431

         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
Ms. Beverly A. Young		Analyst

The following members, a quorum, were present:

Mr. Roger W. Able		Chairperson
Ms. Barbara J. Ellis		Member
Mr. Larry C. Bergquist		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: That the court-martial conviction was given because of his refusal to testify against a friend. He claims that the court did not consider his overall record in rendering its decision. He also claims that he was never given schooling or regions that he had been promised. In addition, he contends that he was never given appropriate therapy for immaturity. The applicant did not submit any documents in support of his application.

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

The applicant enlisted into the Regular Army on 23 January 1970 for a period of three years for training in career management field wire maintenance. He completed training as a wireman and served in Germany.

During the period 28 December 1970 through 8 September 1971, the applicant was punished under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for failing to go or leaving his place of duty on seven occasions and for disobeying a lawful order.

On 8 November 1971, the applicant was notified of pending separation action under the provisions of Army Regulation 635-212, for unfitness based on frequent incidents of a discreditable nature with military authorities. The applicant acknowledged notification, consulted with military legal counsel, requested consideration of his case by a board of officers, requested personal appearance before a board of officers, and did not submit statements in his own behalf.

The applicant's personnel records contain a letter, dated 19 November 1971
from the unit commander of the 6th Battalion, 9th Field Artillery in Germany.
This letter states that the applicant received counseling on four occasions between the period June 1971 and September 1971 for being absent without leave (AWOL); for his duty performance and poor attitude; and for proposed discharge under Army Regulation 635-212.

On 19 November 1971, the unit commander recommended that the applicant be required to appear before a board of officers under the provisions of Army Regulation 635-212, paragraph 6a(1) and requested that the requirements for rehabilitative transfer be waived.

On 13 December 1971, the applicant was convicted by a summary court-martial of leaving his appointed place of duty and wrongful appropriation of an Army vehicle. He was sentenced to confinement at hard labor for 30 days (the confinement for 30 days was suspended until 13 June 1972, at which time it would be remitted unless the suspension was sooner vacated).

The applicant was punished under Article 15, UCMJ on 29 March 1972 and 2 May 1972 for failing to go to his appointed place of duty on two occasions and for failing to obey a lawful order.

A hearing by a board of officers convened on 11 July 1972. The board recommended that the applicant be discharged from the service because of unfitness with the issuance of a General Discharge Certificate.

On 25 July 1972, the separation authority approved the separation action, waived rehabilitative transfer requirements, and directed that the applicant be issued a General Discharge Certificate.

Records show the applicant was convicted by a general court-martial on 6 December 1972 of violating a lawful general regulation by carrying a shotgun. He was sentenced to a bad conduct discharge, forfeiture of all pay and allowances, confinement at hard labor for nine months, and reduction to the grade of E-1.

While in confinement, the applicant underwent a mental status evaluation. He was diagnosed as having an immature personality, chronic, moderate, manifested by lack of any definite goals, poor judgment, and lack of responsibility. The psychiatrist recommended that any consideration for restoration should be dependent upon the applicant's further performance in confinement. The psychiatrist also stated that there were no specific indications for clemency at that time and the applicant was not eligible for parole.

On 4 May 1973, the Army and Air Force Clemency and Parole Board denied the applicant's request for restoration to duty and clemency.

Headquarters, U.S. Army Field Artillery Center and Fort Sill General Court-Martial Order Number 101, dated 16 November 1973 affirmed the applicant's sentence pursuant to Article 66. Accordingly, the applicant was discharged on 4 December 1973 with a bad conduct discharge.

Army Regulation 635-200 governs the separation of enlisted personnel. In pertinent part, it 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. Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s). An honorable discharge may be furnished when disqualifying entries in the soldier's military record are outweighed by subsequent honest and faithful service over a greater period of time during the current term of service. It is the pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service to be awarded. A general discharge is a separation from the Army under honorable conditions. It is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

Title 10, U.S. Code, section 1552(f) states that, with respect to records of courts-martial tried or reviewed under the UCMJ, the Board's action may extend only to action on the sentence of a court-martial for purposes of clemency.

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. 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.

2. The Board considered the applicant's contention that the court-martial conviction was given because of his refusal to testify against a friend; however, he provides no evidence to show this was so.

3. The Board notes that the 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.

4. The Board also considered the applicant's contention that the court did not consider his overall record in rendering its decision. However, the evidence of record shows the applicant was punished under Article 15 on seven occasions and was convicted by a summary court-martial.

5. The Board further considered the applicant's contentions that he was never given the schooling he had been promised or given the appropriate therapy for immaturity. However, evidence of record available to the Board shows he completed the training for which he enlisted. There is no evidence to show his personality disorder rendered him unable to distinguish right and wrong and to adhere to the right.

6. Based on the foregoing, the Board has determined that there is no apparent error, injustice or inequity on which to base recharacterization of his discharge to honorable.
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

RWA____ BJE_____ RWA____ DENY APPLICATION

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

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INDEX

CASE ID	AR2003085431
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030710
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR635-200
DISCHARGE REASON	As a result of court-martial
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	144.0000
2.
3.
4.
5.
6.