MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            15 August 2000    
	DOCKET NUMBER:   AR2000035087

	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. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Thomas D. Howard		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Ms. Gail J. Wire		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:  In effect, that his bad conduct discharge be upgraded to a general discharge.

APPLICANT STATES:  He believes the punishment he received was too severe. He notes that he had previous periods of honorable military service and has completed his associate’s degree since leaving the military.  He states that “the episode that lead to [his] bad conduct discharge was rather immature of [him] and [he feels it] was associated with consuming drinks.”  He states he regrets the loss of his military career. 

COUNSEL CONTENDS:  Counsel offers nothing beyond that provided by the applicant but asks that all reasonable doubt be resolved in the applicant’s favor.

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

He initially entered active duty on 2 December 1974 and was honorably discharged on 27 March 1980 in pay grade E-5.  On 2 July 1980 the applicant reenlisted and returned to active duty.  Following completion of training as a chemical specialist the applicant was assigned to Germany in October 1980.

In September 1982 the applicant was convicted by a general court-martial of the 5 June 1982 assault on another soldier “by kicking him in the head and ribs with a shod foot, slamming his head into the ground, and striking him repeatedly upon his body with closed fists” with the intent to commit robbery.  At the time of the assault the applicant was nearly 28 years old, was serving in pay grade E-4 and had more than 7 years of active military service.  His sentence included confinement at hard labor for 11 months, total forfeiture of pay and allowances, reduction to pay grade E-1 and a bad conduct discharge.

In April 1983 the unexecuted portion of the applicant’s confinement was suspended and the applicant was place in an excess leave status.  On
9 November 1983 the bad conduct discharge was executed.

The Table of Maximum Punishment in the Manual for Courts-martial states that the maximum punishment for assault with the intent to commit robbery is a dishonorable discharge, confinement for 10 years, and total forfeiture.

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.  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.  His bad conduct discharge was not excessive considering he could have received a dishonorable discharge and been sentenced to 10 years in confinement.

2.  While the applicant’s post-service character is noted it does not outweigh the seriousness of his conduct which resulted in his discharge and does not provide an adequate basis upon which the Board would grant relief. 

3.  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 that requirement.

4.  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

__tdh___  ___aao__  ___gjw__  DENY APPLICATION

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

INDEX

CASE ID	AR2000035087	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000815	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	Deny	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.