MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        


                  BOARD DATE: 9 October 2003
                  DOCKET NUMBER: AR2003087029

         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. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor		Chairperson
Mr. Robert J. Osborn		Member
Ms. Eloise C. Prendergast		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.

APPLICANT STATES: That due to extreme stress, he committed a robbery. His house had been robbed and his wife was raped. He freaked out and lost total control. He feels that the punishment was too extreme for the crime. He feels that given his state of mind the dishonorable discharge was unfair. He provides no supporting evidence.

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

He enlisted in the Regular Army on 10 August 1976. He completed basic training and advanced individual training and was awarded military occupational specialty 13B (Field Artillery Crewman).

On 10 May 1977, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for wrongfully possessing marijuana and for wrongfully possessing a straight razor.

On 17 October 1978, the applicant accepted NJP under Article 15, UCMJ for twice failing to go to his appointed place of duty.

On 22 December 1978, the applicant accepted NJP under Article 15, UCMJ for failing to go to his appointed place of duty.

On 12 March 1979, the applicant underwent a mental status evaluation. He was found to be mentally responsible, to be able to distinguish right from wrong and to adhere to the right, and to have the mental capacity to understand and participate in a court-martial.

On 13 March 1979, the applicant was convicted by a general court-martial of stealing from another soldier, by means of force and violence, a wallet containing $60.00 and a total value of about $65.00, committed on 29 December 1978. His adjudged sentence was to be reduced to pay grade E-1, to be confined at hard labor for 2 years, to forfeit $100.00 pay per month for 24 months, and to be discharged with a dishonorable discharge. The convening authority approved only so much of the sentence as provided for a dishonorable discharge, confinement at hard labor for 1 year, and forfeiture of $100.00 pay per month for 24 months.

The victim had testified at the court-martial that he was approached by one man who asked him if he wanted to buy drugs. The victim walked with that man to the back of the snack bar when he saw a second man coming out of the snack bar. After walking about 20 or 25 feet, he was hit and kicked and punched by two men. One of the men got his wallet out of his (the victim's) back pocket, at which time the two assailants ran off in different directions. (The victim, when initially interviewed by investigators, did not tell about his willingness to buy drugs.)

The applicant testified that a civilian friend waited outside the snack bar for him on the night of the incident. When he came out of the snack bar, he saw the victim and his friend involved in a fight. He tried to break up the fight. He hit the victim, but not until after the victim bit him. After his friend took the wallet, the applicant ran off, scared. His friend came to the barracks later and gave the applicant $40.00 ($30.00 of which was to repay a loan). The applicant knew it was wrong to take the money. He had not planned to rob the victim and he did not personally take the victim's wallet.

In his appeal to the U. S. Army Court of Military Review, attorneys for the applicant did not admit that the findings and sentence were correct in law and fact. His attorneys noted that all of the commanders in his chain of command had recommended the applicant be tried by a special court-martial empowered to adjudge a bad conduct discharge. His company commander had testified that he would not object if the applicant were returned to his unit after he had served his sentence. The applicant had risen to the rank of specialist four despite three instances of nonjudicial punishment for minor infractions. The psychological shock of the rape of his wife had an adverse effect on the applicant's conduct. Because only one year of confinement at hard labor was approved, the applicant would not be eligible for parole. Based upon those factors, his attorneys requested the Court approve no sentence greater than a bad conduct discharge, confinement at hard labor for 6 months, and forfeiture of $100.00 pay for 4 months.

In reply to the applicant's appeal, counsel for the Government stated that the applicant denied he committed the robbery for which he was convicted yet he admitted to assisting in the attack upon the victim and splitting the proceeds with his cohort. His reason for accepting money he knew neither he nor his accomplice had any right to was because the accomplice owed him money. Attorneys for the applicant had the mistaken belief that he could not be paroled because his sentence now included only one year's confinement. He could apply for parole at any time. In the Government's view, the [unfortunate] incident with the applicant's wife should have impressed upon him the reason for the law's protection of the sanctity of a person and his property and not become an excuse for his own disregard of the personal safety and rights of another.

On 16 August 1979, the U. S. Army Court of Military Review affirmed the findings of guilty and the sentence.

On 18 October 1979, the U. S. Court of Military Appeals denied the applicant's petition for grant of review.

On 8 January 1980, the applicant was discharged with a dishonorable discharge pursuant to his sentence by court-martial.

The Manual for Courts-Martial United States, 1969 revised edition, states that the maximum punishment for violation of Article 122 (robbery) is a dishonorable discharge and 10 year's confinement at hard labor.

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. 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 notes the applicant's contention that he was under extreme stress due to his house being robbed and his wife raped shortly before the incident for which he was convicted. However, the Board also notes that a mental status evaluation had determined that he was found to be able to distinguish right from wrong and to adhere to the right. This contention was finally and conclusively adjudicated in the court-martial appellate process.

3. The Board notes that the maximum punishment to which the applicant could
have been sentenced was 10 year's confinement at hard labor in addition to his dishonorable discharge. The applicant was initially sentenced to only 2 year's confinement at hard labor. The Board believes that the convening authority took into consideration all the circumstances surrounding the applicant's previous misfortunes and his part in the incident and granted clemency by reducing the adjudged sentence to only 1 year confinement at hard labor.
4. 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. The Board concludes that further clemency is not warranted.

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___ __rjo___ __ecp___ DENY APPLICATION

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

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INDEX

CASE ID	AR2003087029
SUFFIX
RECON
DATE BOARDED	20031009
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	105.01
2.
3.
4.
5.
6.