The applicant requests correction of military records as - DOC by DIxXp3

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									                        MEMORANDUM OF CONSIDERATION


      IN THE CASE OF:



      BOARD DATE:                21 August 2001
      DOCKET NUMBER:           AR2000050208

      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. Rosa M. Chandler                                Analyst


  The following members, a quorum, were present:

       Mr. James E. Vick                                   Chairperson
       Ms. Barbara J. Ellis                                Member
       Mr. William D. Barr                                 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)
ABCMR                                    Memorandum                                     of
AR2000050208
Consideration (cont)

APPLICANT REQUESTS: In effect, that his bad conduct discharge (BCD) be
upgraded to a general discharge or to a fully honorable discharge.

APPLICANT STATES: In effect, that he has grown up and he sees life differently now.
 He is getting older and he just does not want the BCD on his record.

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

That on 7 March 1966, he enlisted in the Regular Army for a period of 4 years. He was
assigned to Fort Polk, Louisiana for basic training. He left his unit in an absent without
leave (AWOL) status from 15-17 April 1966 and from 15-16 June 1966. He was in civil
confinement from 17-25 June 1966 for wrongfully appropriating another service
member's vehicle. He was also AWOL from 3 July 1966 until he was returned to Fort
Leonard Wood, Missouri on 25 November 1966.

On 4 January 1967, the applicant was convicted by a special court-martial of two
specifications of AWOL (15-25 June 1966 and 3 July-25 November 1966 -- there is no
evidence that he ever received punishment for the 15-17 April 1966 period of AWOL),
and of wrongfully appropriating a 1955 Ford automobile, of a value of about $150.00,
the property of another service member, on 14 June 1966. He was sentenced to
confinement at hard labor for 6 months and forfeiture of $60.40 pay per month for 6
months. On 9 January 1967, the sentence was approved.

Upon his release from confinement, the applicant was returned to his unit on Fort
Leonard Wood. He immediately went AWOL again on 7 June 1967. On 25 July
1967, he was returned to military control at the Post Stockade Fort Sill, Oklahoma. On
1 September 1967, he was convicted by a special court-martial of being AWOL from
7June-25 July 1967; and for attempting to escape from lawful confinement (the Post
Stockade at Fort Sill). He was sentenced to confinement at hard labor for 6 months
and forfeiture of $64.00 pay per month for 6 months. On 7 September 1967, only that
portion of the sentence that provided for confinement for 6 months and forfeiture of
$60.00 pay per month for 3 months was approved.

The applicant departed Fort Sill in an AWOL status from 25 February-28 June 1968.
On 5 July 1968, he was returned to military control at the Special Processing
Detachment, Fort Leonard Wood. On 30 July 1968, he was once again convicted by a
special court-martial of being AWOL from his unit, this time




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ABCMR                                   Memorandum                                      of
AR2000050208
Consideration (cont)

from 25 February-28 June 1968. He was sentenced to confinement at hard labor for 6
months and forfeiture of $73.00 pay per month for 6 months. On 1 August 1968, only
that portion of the sentence that provided for confinement at hard labor for 6 months
and forfeiture of $65.00 pay per month for 6 months was approved.

On 25 September 1968, while confined at the Fort Leonard Wood Stockade, the
applicant was convicted by a general court-martial of participating in a riot. He
unlawfully assembled with five other prisoners for the purpose of executing a
tumultuous demonstration against lawful authority and assisted in preventing stockade
guard personnel from performing their duties. He and his fellow rioters armed
themselves with iron bars and boards, assaulted and threatened guard personnel,
disobeyed the lawful orders of stockade personnel to cease and desist, released other
prisoners from their cells and made noise. He was sentenced to a dishonorable
discharge (DD), to confinement at hard labor for 6 years, and forfeiture of all pay and
allowances. On 18 December 1968, only that portion of the sentence that provided for
confinement at hard labor for 18 months, forfeiture of all pay and allowances, and a DD
was approved. However, the execution of the DD was suspended pending appellate
review.

On 11 March 1969, the United States Court of Military Review, having affirmed the
finding and approved the sentence of the general court-martial, the sentence was
ordered to be duly executed.

On 27 March 1969, a physical examination found the applicant physically qualified for
separation.

On 29 March 1969, the applicant was denied clemency and parole. He did not desire
restoration to duty.

On 31 March 1969, he was discharged under the provisions of chapter 11, Army
Regulation 635-200, as a result of a court-martial with a DD. However, he continued to
serve in military confinement.

On 29 July 1969, he underwent a mental status evaluation by a professionally trained
psychiatrist. He was determined to have an inadequate personality that was chronic
and minimal as manifested by lack of emotional stamina. Also he was determined to
have a tendency to use poor judgment under stress. The psychiatrist recommended
clemency, due to the adjustment he had made and due to the fact that he was not a
chronic criminal offender.




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ABCMR                                     Memorandum                                      of
AR2000050208
Consideration (cont)

On 7 October 1969, the Army Clemency and Parole Board reconsidered the applicant's
request for clemency and parole. He was once again denied parole; however, he was
granted clemency in that the unexecuted portion of his sentence to confinement was
remitted. His DD had already been voided in favor of a BCD earlier on 8 May 1969.

He was issued a new DD Form 214 (Armed Forces of the United States Report of
Transfer or Discharge) showing that he was discharged on 31 March 1969, with a BCD
under the provisions of chapter 11, Army Regulation 635-200, as a result of a
court-martial. He had served 3 month and 21 days of active military service and 972 of
days lost time due to AWOL and confinement.

Court-martial convictions stand as adjudged or modified by appeal through the judiciary
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. Rather, it 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.

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 applicant was a chronic offender. 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.

2. The Board acknowledges the applicant's successful transition to civilian life.
However, in review of his entire service record, the Board found that his successful
transition to civilian life was not sufficiently mitigating to overcome the reasons for
discharge.

3. In view of the foregoing, there is no basis to grant the applicant's request.




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ABCMR                                 Memorandum                                    of
AR2000050208
Consideration (cont)

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

__jev__ _ ___bje __ __wdb___ DENY APPLICATION




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




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ABCMR                             Memorandum   of
AR2000050208
Consideration (cont)



                                  INDEX

CASE ID                AR2000020508
SUFFIX

RECON
DATE BOARDED           20010821
TYPE OF DISCHARGE      (BCD)
DATE OF DISCHARGE      19690331
DISCHARGE AUTHORITY    AR635-200, CH 11
REASON                 A04.00
BOARD DECISION         (DENY)
REVIEW AUTHORITY
ISSUES        1.       144.0400
           2.
           3.
           4.
           5.
           6.




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