MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           24 May 2000                   
	DOCKET NUMBER:   AR1999027805

	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 Amos		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Mark D. Manning		Member	
	Ms. Meta Waller		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:  That his bad conduct discharge be upgraded to honorable, that the reason for discharge be changed to “convenience of the government” with a corresponding change in his separation code, and that his reenlistment (RE) code be changed to RE-1.

APPLICANT STATES:  That he believes there was a violation of his pre-trial agreement and that the appellate process was tainted.  His conduct and efficiency ratings were pretty good and he had received prior honorable discharges.  He had combat service and received awards and decorations.  He has been an upstanding citizen since his discharge.  His court-martial indicates isolated offenses and the reason for the offenses was not brought up at his court-martial.  His medical problems impaired his ability to serve so he returned to the States to obtain treatment but was refused.  He applied for a discharge for the good of the service but was denied that opportunity.  He provides a resume and a list of references, his DD Form 214 from the Navy and NGB Form 22, a Federal Bureau of Investigation arrest sheet with a cover memorandum from the City of Norfolk showing all listed dispositions had been set aside, his DD Form 214 from the Army, six character references, nine certificates of completion/appointment/attendance, two letters verifying his attendance at a paramedic course and the transcript for that course, and a U. S. Court of Military Appeals decision concerning “subsequent misconduct” clauses in pretrial agreements with a cover letter from his defense attorney.

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

He served in the U. S. Navy as an electrician from 18 June 1968 – 20 July 1972 and was awarded the National Defense Service Medal, the Vietnam Service Medal, the Vietnam Campaign Medal and the Navy Achievement Medal with combat “v.”  He then served in the U. S. Army Reserve and the Army National Guard until 12 September 1976 when he was discharged to enlist in the Regular Army.  After completing basic training and advanced individual training he was assigned to Germany.  He was promoted to Sergeant, E-5 on 9 March 1978.

On 13 August 1979, the applicant completed a separation physical examination and was found qualified for separation with a physical profile of 111111 (no assignment limitations).

On 15 August 1979, the applicant was psychiatrically cleared for any administrative action deemed appropriate.

On 18 October 1979, the applicant was convicted by a special court-martial of being absent without leave (AWOL) for the period 8 August 1978 – 7 August 1979.  His approved sentence was to forfeit $299.00 pay for 6 months, to be confined at hard labor for 6 months and to be reduced to Private E-1.  The approval authority declared the pretrial agreement, dated 10 October 1979, to be null and void.

On 7 January 1980, a mental status evaluation found the applicant to be mentally responsible, able to distinguish right from wrong and to adhere to the right and to have the mental capacity to understand and participate in court-martial proceedings.

On 5 May 1980, the applicant was convicted by a general court-martial of committing perjury on 18 October 1979.  He was sentenced to a bad conduct discharge, to be confined at hard labor for 9 months, and to forfeit all pay and allowances.  The sentence was affirmed on 15 January 1981.

On 22 January 1981, the applicant was discharged with a bad conduct discharge pursuant to his court-martial sentence.

Title 10, U. S. code, section 1552, as amended, precludes any action by this Board which would disturb the finality of a court-martial conviction.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  Commanders having discharge authority must be selective in approving requests for discharges for the good of the service.  The discharge authority should not be used when the nature, gravity and circumstances surrounding an offense require a punitive discharge and confinement.  Consideration should also be given to the soldier’s potential for rehabilitation and his entire record should be reviewed before taking action.  Use of this discharge authority is encouraged when the commander determines that the offense is sufficiently serious to warrant separation from the Service and the soldier has no rehabilitation potential.

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 the aforementioned requirement.

2.  A request for discharge for the good of the service is not automatically granted to soldiers who request such discharge.  The discharge authority must consider the nature and gravity of the offense and the soldier’s potential for rehabilitation.  The Board notes the applicant’s prior good record and concludes the discharge authority also considered his record in deciding not to grant the applicant a discharge for the good of the service, believing that he would have had the potential for continued, honorable service after completion of his sentence (provided, of course, that a punitive discharge was not part of that sentence).  The action taken was within the discretion provided by law and regulation to the general court-martial convening authority.

3.  The Board concludes that under the provisions of Title 10, U. S. code, section 1552(f), it is not within its authority to review court-martial cases.  The general court-martial convening authority’s denial of the applicant’s request for discharge for the good of the service was within his discretion.  In light of the misconduct for which he was convicted and the results of trial, the reenlisment code and the separation code are appropriate. 

4.  The applicant’s contentions regarding his pre-trial agreement and appeal relate to evidentiary and procedural matters which were finally and conclusively adjudicated in the court-martial appellate process and furnish no basis for recharacterization of the discharge.

5.  The Board has taken cognizance of the applicant’s good post-service conduct but that factor does not warrant the relief requested.  Considering the totality of the circumstances in this case, the evidence submitted does not justify granting clemency on the sentence.  The applicant’s recourse is to file an appeal to a Federal Court of competent jurisdiction.

6.  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___  __mw____  DENY APPLICATION

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

INDEX

CASE ID	AR1999027805	
SUFFIX		
RECON		
DATE BOARDED	20000524	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	105.01	
2.		
3.		
4.		
5.		
6.