MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:


         BOARD DATE: 07 OCTOBER 2003
         DOCKET NUMBER: AR2003085537

         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. Deborah L. Brantley		Senior Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Ms. Shirley L. Powell		Member
Mr. Robert L. Duecaster		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: Reconsideration of his earlier application to correct his military records by upgrading his bad conduct discharge. He also asks, in his current application, that he be credited with years of service sufficient for retirement purposes and that he be retired in pay grade E-6.

APPLICANT STATES: In effect, that he was administratively assigned to the Commandant, United States Army Disciplinary Barracks and as such should not have been discharged by the Chief Activity Personnel Branch at the “retraining brigade” at Fort Riley, Kansas. He states because of that action he was sent “home on military parole for a year.” He maintains that he should have been “discharged from the United States Army and time served” and as such his civil rights were violated. He states it was up to the commandant to discharge him.

The applicant also argues that he did not receive any “VET [vocational education training]” as noted in orders published in February 1988. He states that the only training he received was via a college course he initiated.

He states, in effect, that he served his time as a “MIC [military instruction course]" candidate and should have been returned to military service to complete his enlistment. He states, in effect, that he was denied that opportunity through no fault of his own.

In addition to his self authored statement and a copy of a 2002 diploma from Excelsior College, the applicant also submits a copy of a May 2001 letter to President Bush, authored by an individual seeking a pardon on behalf of the applicant. The remaining documents, which included copies of his separation documents, extracts from his military personnel file, and a summary of his military service and awards, were available during the Board’s prior considerations of his case.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 26 February 1992 (AC90-10674) and reconsidered on 4 August 1999 (AR1999014964).

The applicant’s contention that he should have been permitted to return to active duty and that he was improperly discharged by an unauthorized individual constitutes a new argument that requires Board consideration.

In November 1987 the applicant was convicted by a general court-martial. His sentence included confinement for two years, reduction to pay grade E-1, and a bad conduct discharge.

The applicant was reduced from pay grade E-6 to pay grade E-1 and assigned to Company A, 3^rd Battalion, United States Army Correctional Activity (USACA) at Fort Riley to serve his confinement.

In February 1988 he was reassigned from Company A to Company B of the 3^rd Battalion “for VET Training.” No further information concerning his training was available to the Board. The applicant, however, remained assigned to Company B for the duration of his confinement at Fort Riley.

On 14 October 1988 the applicant’s bad conduct discharge was executed. The orders discharging the applicant were issued by the United States Army Correction Activity at Fort Riley and authenticated “for the commander” by the Chief, Activity Personnel Branch. Included, as part of the discharge action was an administrative action assigning the applicant to the Commandant, United States Army Disciplinary Barracks, Fort Leavenworth, Kansas while the applicant was in a “military parole” status. Documents associated with the applicant’s parole process were not available to the Board.

The May 2001 letter to President Bush, seeking a pardon for the applicant, was authored by an individual who states that he “was the last commander of the unit that had evolved from the old Army Retraining Brigade of the Vietnam War era.” That individual argued that the applicant was a good Soldier, served honorably through four enlistments and was serving his fifth enlistment when he was court-martialed. He states that prisoners at the correctional Brigade worked long, hard hours and their only reward came “when selected prisoners were allowed to attend the Army’s Military Instruction Course (MIC)” and that “graduating from this demanding course of instruction at the conclusion of a prisoner’s sentence allowed him or her to return to active duty where they could complete their enlistment and receive an honorable discharge.” He states that as the military experienced its draw down from Vietnam, “the role of the Retraining Brigade changed drastically from maximizing the number of soldiers returned to duty to sending only a fraction back into the ranks and rehabilitating the remainder with skill and job training.” He argues that had the “rules” not changed the applicant would “easily been selected as a MIC candidate” and “through no fault of his own he was not allowed to attend the MIC training.”

As historical background information; in 1968 the United States Army Correctional Training Facility (CTF) was established in response to the public demands during the mid-1960s that society attempt to rehabilitate criminals in confinement rather than just confine them. The CTF’s mission was to confine prisoners and retrain them for return to duty or, when necessary, to separate




them from the Army. The CTF emphasized rehabilitation and retraining for return to duty. In 1973, the CTF was renamed the United States Army Retraining Brigade (USARB) to more accurately reflect its emphasis on retraining. Then in 1982, the USARB was designated the United States Army Correctional Activity (USACA) to reflect the change in mission emphasis from retraining prisoners for return to duty to confining and preparing them for reentry into the civilian community life as productive citizens. In October 1989, the United States Army Correctional Activity was redesignated as the United States Army Correctional Brigade (USACB). The USACB mission remained the same, to retrain and return deserving Soldiers to duty. In the early 1990’s the USACB was deactivated and the facilities having medium-term prisoners were renamed Regional Corrections Facility (RCF).

Army Regulation 190-47 establishes the policies and provisions of the Army corrections system. It states, in pertinent part, that Army prisoners will be released from confinement at the times and under the conditions most likely to ensure their earliest assumption of responsibilities as productive law abiding citizens. It notes that each prisoner desiring parole will complete an appropriate form and submit it to the commander or designated representative. Prisoners who do not desire parole when eligible may request consideration prior to their next annual eligibility date. Soldiers who have parole approved will be administratively transferred to the United States Disciplinary Barracks (USDB) at the time of release on parole and will remain under the legal supervision and control of the Commandant, USDB until the expiration of the full term or aggregate terms of the sentence without credit for abatement.

The regulation also states that “in the spirit and intent of public law, the Army may return to military service those Army prisoners and parolees who are physically, mentally, and morally qualified and possess the requisite potential for successful reintegration into the active force.” Actions to return a prisoner to military service include restoration and reenlistment. Restoration to duty means the return to active duty status of an individual whose court-martial sentence does not include a punitive discharge or whose sentence includes a punitive discharge that is either suspended or unexecuted. Reenlistment means the return to active duty of an individual whose court-martial sentence includes an executed punitive discharge. Prisoners voluntarily desiring restoration will submit a written application for consideration. Prisoners applying for restoration may also apply for parole. However, applications for restoration must include a statement from the prisoners acknowledging that if restoration is approved, parole will not be executed if approved. Applications to return to active duty are ultimately adjudicated by the Army Clemency and Parole Board.




Army Regulation 15-130 establishes the policies and provisions of the Army Clemency and Parole Board (ACPB). It notes that the ACPB may recommend that restoration or reenlistment of a prisoner or parolee who demonstrates potential for further military service. Neither restoration nor reenlistment affects any aspect of an approved, adjudged sentence, including the character of any approved, executed discharge. The ACPB may also recommend that the individual be required to successfully complete a restoration training program as a condition for restoration or reenlistment. Such training is provided to prisoners who, as a result of the length of their incarceration require reorientation with general military subjects prior to returning to a military unit. It is not intended to provide prisoners with basic Soldier or military occupational specialty skills.

Army Regulation 190-47 also states that organized vocational training and academic classes will be conducted at Army Correctional System facilities when resources are available. Vocational training includes preparation for training in trades, industry, business, and other vocations designed to assist prisoners for assumption of employment in private industry upon release. Training may include practical work, maintenance details, and individual vocational/academic counseling closely correlated with work placement opportunities upon the prisoner’s release. There is no specific mention of issuing any “training certificates” upon completion of any of the specified training programs.

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. Although documents associated with the applicant’s parole process were not available to the Board, the evidence does support a conclusion that the applicant would have been an active participant in the process. He would have been required to request and agree to the parole action.

2. The applicant could also have requested restoration or reenlistment if he so desired, even though such actions may no longer have been the primary focus of the Army’s correctional system as noted in the 2001 letter to President Bush requesting the applicant be pardoned.

3. The applicant’s contention that an inappropriate authority discharged him because he was “administratively assigned” to the USDB is without foundation. The administrative assignment was merely for accountability purposes and had no impact on the applicant’s punitive discharge action.

4. The absence of some sort of “training” certificate is no evidence that the applicant was not provided some sort of vocation training as provided for by the regulation. The Board also concludes that even if he did not undergo such training it would not serve as a basis to conclude that his discharge was erroneous or warrant the relief the applicant is now requesting.

5. The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

6. 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

__FNE __ __SLP __ __RLD _ DENY APPLICATION

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

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INDEX

CASE ID	AR2003085537
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20031007
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.