MEMORANDUM OF CONSIDERATION

IN THE CASE OF:  

BOARD DATE:            9 December 1999
DOCKET NUMBER:   AR1999023493

	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. Loren G. Harrell		Director	
	Mr. Gerald E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Ms. JoAnn H. Langston		Chairperson	
	Mr. Thomas D. Howard, Jr.		Member	
	Mr. James P. Steuve		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 application to correct his records by upgrading his Bad Conduct Discharge (BCD), changing the narative reason for discharge, restoring him to active duty, restoring him to the rank of staff sergeant (SSG) with back pay and benefits, and by retiring him as a SSG.

APPLICANT STATES:  In effect, through his counsel, that he was unlawfully imprisoned from 20 December 1984 to 15 February 1985, in violation of the Fourth, Fifth, Eighth, and Fourteenth Amendments of the Constitution, the Uniform Code of Military Justice (UCMJ), Army regulations and procedural due process.  He further contends that his discharge violated legal prohibitions on ex-post facto laws and that the convening authority erred in his judgement.  He avers that he served time in confinement when he had no jail sentence, further violating his rights.  The applicant and counsel contend that his rights were further violated when he was first notified to report for a personal appearance before the Army Discharge Review Board only to have it canceled shortly before the scheduled date.  He contends that he should now be afforded a personal appearance before this Board.

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 1 March 1995 (COPY ATTACHED).

The applicant submits copies of VA denials of entitlement to VA benefits due to his BCD.  These were not available to the Board previously nor was the argument of violations of law and procedures addressed previously.  This constitutes new evidence and argument that requires Board review. 

Title 10 USC Subsection 1552(f), prohibits the Board for Correction of Military Records from correcting records of court-martials and administrative records pertaining to court-martial records tried or reviewed, except for corrections directed by reviewing authorities or clemency on the sentence.

The staff of the Board attempted to obtain additional evidence on the issue of clemency from both the applicant and his counsel with no response.

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’s personal appearance before the ADRB was properly canceled.  That board does not have the authority to act on discharges ordered as the result of trial by general court-martial. 

2.  The applicant's contentions relate to evidentiary and procedural matters that were finally and conclusively adjudicated in the court-martial appellate process, and furnish no basis for recharacterization of the discharge.

3.  Despite the Board’s specific attempt to elicit evidence to consider issues of clemency, neither the applicant nor his counsel have offered any evidence or arguments on the issues of clemency not reviewed at the time of the Board’s original review. 

4.  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.

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

__JHL___  ___TDH_  __JPS___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999023493	
SUFFIX		
RECON		
DATE BOARDED	19991209	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	105.01	
2.		
3.		
4.		
5.		
6.