RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           8 July 2004
      DOCKET NUMBER:   AR2004100595


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Wanda L. Waller               |     |Analyst              |


  The following members, a quorum, were present:

|     |Ms. Kathleen Newman               |     |Chairperson          |
|     |Ms. Gail Wire                     |     |Member               |
|     |Mr. William Powers                |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that clemency in the form of an
honorable discharge or general discharge be granted.

2.  The applicant states, in effect, that his dishonorable discharge should
be upgraded because he served his confinement and was restored to duty.

3.  The applicant provides a DD Form 214 (Report of Transfer or Discharge)
for the period ending 14 June 1971; a DD Form 214 (Report of Separation
from Active Duty) for the period ending 16 May 1975; and a letter, dated 24
June 2003, from his employer.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted on 14 March 1967 for a period of 3 years.  He
successfully completed basic combat training and advanced individual
training in military occupational specialty 11B (light weapons infantryman)
and was transferred to Vietnam on 10 August 1967.

2.  On 26 November 1967, nonjudicial punishment was imposed against the
applicant for being in an off-limits area.  His punishment consisted of a
reduction to E-2.

3.  The applicant was transferred back to the United States on 5 August
1968.

4.  On 6 January 1969, nonjudicial punishment was imposed against the
applicant for failure to repair (two specifications).  His punishment
consisted of a forfeiture of pay.

5.  On 11 July 1969, nonjudicial punishment was imposed against the
applicant for being absent without leave (AWOL) from 7 July 1969 to 9 July
1969.  His punishment consisted of a reduction to E-3.

6.  On 13 February 1970, contrary to his pleas, the applicant was convicted
by a general court-martial of three specifications of robbery and
unlawfully carrying a concealed weapon (blackjack).  He was sentenced to be
discharged from the service with a dishonorable discharge, to forfeit all
pay and allowances, and to be confined at hard labor for 8 years.  On 18
May 1970, the convening authority approved the sentence.

7.  On 4 February 1971, the U.S. Army Court of Military Review affirmed the
findings of guilty and the sentence.  The dishonorable discharge was
ordered executed on 18 May 1971.

8.  Accordingly, the applicant was dishonorably discharged on 14 June 1971
under the provisions of Army Regulation 635-200, chapter 11, as a result of
a court-martial.  He had served 2 years, 7 months and 19 days of total
active service with 131 days of lost time due to AWOL and confinement.  He
had 458 days of lost time subsequent to his normal expiration term of
service (14 March 1970 to 14 June 1971).

9.  On 28 October 1971, the Secretary of the Army remitted all confinement
in excess of 6 years.

10.  On 18 February 1972, the Secretary of the Army directed that the
applicant be restored to active duty upon successful completion of the
correctional training program.

11.  A letter, dated 5 April 1972, stated that as directed by the Secretary
of the Army, the unexecuted portion of the applicant's sentence to
confinement would be remitted upon his successful completion of the
required period of training and effective upon his voluntary enlistment in
the Regular Army.  This letter also stated that since the applicant would
be restored to duty to complete a new period of service, that he was to be
informed that restoration to duty in this manner leaves the prior discharge
unaffected and the period of service covered by it.

12.  The applicant enlisted on 17 May 1972 for a period of 3 years.  He
served as an infantryman and was honorably discharged on 16 May 1975.

13.  Army Regulation 635-200 provides the basic authority for the
separation of enlisted personnel.  Chapter 11, in effect at the time,
provides for dishonorable and bad conduct discharges.  The regulation
states, in pertinent part, that a member will be given a dishonorable
discharge pursuant only to an approved sentence of a general court-martial,
after completion of appellate review and after such affirmed sentence has
been ordered duly executed.

14.  Section 1552(f), Title 10, United States Code states that the Army
Board for Correction of Military Records can only review records of court-
martial and related administrative records to correct a record to
accurately reflect action taken by reviewing authorities under the Uniform
Code of Military Justice or to take clemency action.

15.  Army Regulation 635-200, paragraph 3-7, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  The honorable characterization is appropriate when the
quality of the member’s service generally has met the standards of
acceptable conduct and performance of duty for Army personnel (emphasis
added), or is otherwise so meritorious that any other characterization
would be clearly inappropriate.
16.  Army Regulation 635-200, paragraph 3-7, provides that a general
discharge is 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 the soldier’s
separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows that clemency was granted on two separate
occasions by the Secretary of the Army.

2.  The statement provided by the applicant's employer fails to show that
the dishonorable discharge was unjust and should be upgraded.

3.  The applicant’s record of service for his first enlistment included
three nonjudicial punishments and one general court-martial conviction.  As
a result, this record of service did not meet the standards of acceptable
conduct and performance for Army personnel.  Therefore, clemency in the
form of an honorable discharge is not warranted in this case.

4.  The seriousness of the robbery offenses were too great to grant
clemency in the form of a general discharge.

5.  The applicant has failed to show that the general court-martial
proceedings were not conducted in accordance with law and regulations
applicable at the time or that he was denied due process.  Trial by court-
martial was warranted by the gravity of the offenses 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.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

KN_____  GW_____  WP______  DENY APPLICATION







BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.



            _Kathleen Newman_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100595                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040708                                |
|TYPE OF DISCHARGE       |DD                                      |
|DATE OF DISCHARGE       |19710614                                |
|DISCHARGE AUTHORITY     |AR 635-200 Chapter 11                   |
|DISCHARGE REASON        |As a result of court-martial            |
|BOARD DECISION          |NC                                      |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |