MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        


                  BOARD DATE: 18 November 2003
                  DOCKET NUMBER: AR2003087845

         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. Carolyn Wade		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Mr. Mark D. Manning		Member
Ms. Barbara J. Ellis		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 bad conduct discharge (BCD) be upgraded.

APPLICANT STATES: That he was discharged in 1973 while President Nixon was in office; however, President Carter gave all Soldiers discharged during that period of time a chance to request an upgrade or pardon. He states that he mailed in the proper forms years ago, but he has never received a reply.

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

He enlisted in the Regular Army on 16 February 1973 for a period of 2 years. On 22 February 1973, the applicant extended his enlistment of 16 February 1973 by 12 months.

On 27 February 1973, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for being disrespectful in language toward his noncommissioned officer (NCO). His punishment consisted of forfeiture of $70.00 pay per month for 1 month and 14 days’ restriction and extra duty.

On 12 June 1973, the applicant departed his unit absent without leave (AWOL) and remained absent until on or about 17 June 1973.

On 18 July 1973, the applicant, appearing before a military judge (MJ) only, pled guilty to the charges of being disrespectful toward his superior commissioned officer by saying to him, “You punk, I don’t …” and turning and walking away from the officer while the officer was still talking to him; striking his superior commissioned officer on the face with his hand; and being AWOL from 12 to 17 June 1973.

After inquiry by the MJ into the plea, the MJ found the plea to be improvident and entered a not guilty plea on the applicant’s behalf. The applicant was convicted by a special court-martial of the above charges and was sentenced to a BCD, confinement at hard labor for 6 months, and forfeiture of $204.00 pay per month for 6 months. The sentence was approved on 16 October 1973, but only so much of the sentence as provided for 6 months’ confinement at hard labor and forfeiture of $204.00 pay per month for 6 months was ordered executed as adjudged. The applicant was confined at the United States Disciplinary Barracks, Fort Leavenworth, Kansas.

On 19 November 1973, the United States Army Court of Military Review completed the appellate review, the sentence was affirmed, and the BCD was ordered executed.

Accordingly, on 7 December 1973, the applicant was discharged with a BCD pursuant to his sentence by special court-martial. He was credited with 3 months and 27 days of active military service and 178 days of lost time due to AWOL and confinement.

Army Regulation (AR) 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.

Although the applicant does not specifically identify the program he is referring to in his statement, the Board presumes he is referring to Presidential Proclamation Number 4313 and Public Law 95-126. Presidential Proclamation Number 4313 was issued by President Ford and affected three groups of individuals. These groups were: (1) Fugitives from justice who were draft evaders; (2) Members of the Armed Forces who were in an unauthorized absence status; and, (3) Prior members of the Armed Forces who had been discharged with a punitive or undesirable discharge for violation of Articles 85, 86, or 87 of the Uniform Code of Military Justice. It provided an opportunity for deserters to work their way back into American society.

President Carter signed Public Law 95-126. Congress enacted this law because deserters from the Republic of Vietnam were eligible for veteran’s administration (VA) benefits if their discharge was upgraded under the Special Discharge Review Program. The law statutorily barred VA benefits for AWOL’s greater than 180 days as well as conscientious objectors. The law also mandated that Discharge Review Boards publish “uniform standards,” then “relook” all cases upgraded from under other than honorable under the SDRP or the PP4313 program and (its extension) using the uniform standards.

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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 noted the applicant’s contention that President Carter gave all Soldiers discharged a chance to upgrade their discharge or receive a pardon and that he mailed his papers in, but did not get a response. However, the evidence of record does not contain any documentation to support the applicant’s contention that he submitted documents years ago or that they were ever received, nor has the applicant provided any evidence to support his contention.

2. Additionally, the applicant did not qualify for the specific programs he referenced on his application. The applicant was not discharged because he was in an AWOL or deserter status, but because of conviction by a special court-martial that sentenced him to a BCD.

3. 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 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.

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

__jns___ __mdm___ __bje___ DENY APPLICATION

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

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INDEX

CASE ID	AR2003087845
SUFFIX
RECON
DATE BOARDED	20031118
TYPE OF DISCHARGE	BCD
DATE OF DISCHARGE	19731207
DISCHARGE AUTHORITY	AR 635-200, Chap 11
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	110.0200
2.
3.
4.
5.
6.