MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           19 September 2000 
	DOCKET NUMBER:   AR2000043399

	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. Anita L. McKim-Spilker		Analyst	

  The following members, a quorum, were present:

	Mr. Hubert O. Fry, Jr. 		Chairperson	
	Mr. John P. Infante 		Member	
	Ms. Regan K. Smith		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 (BCD) be upgraded to general, under honorable conditions or honorable.

APPLICANT STATES:  In effect, that he desires a review of his official record in support of his request for an upgrade.

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

On 17 June 1993 he enlisted in the Regular Army in the rank of private/E-2 for
a period of 4 years.  He successfully completed basic combat training and advanced individual training (AIT) in military occupational specialty 75D (Personnel Records Specialist) at Fort Jackson, South Carolina.  Upon completion of AIT he was assigned to Fort Polk, Louisiana. 

The applicant’s record documents that the highest permanent rank he held on active duty was specialist/E-4 and that he received the Army Achievement Medal, the National Defense Service Medal, and the Army Service Ribbon. 

On 25 October 1994 he departed Fort Polk in casual status en route to Fort Bliss, Texas.

On 6 March 1996, while at Fort Bliss, he was convicted by a general court-martial of conspiring with another service member to commit larceny; stealing $6,224, property of the government; and, with intent to defraud, submitting a false official document.  He was sentenced to a bad conduct discharge, a reduction to private/E-1, confinement for one year, and a forfeiture of all pay and allowances.  The applicant was confined at Fort Sill, Oklahoma.

On 3 May 1996 the appropriate authority approved the sentenced adjudged and ordered the sentence executed except for the part of the sentence extending to a bad conduct discharge.    

On 8 January 1997 the applicant was released from confinement and placed on excess leave pending completion of the appellate review process.

On 1 May 1997 The Court of Military Review affirmed the findings of guilty and the sentence approved.  The appropriate authority ordered the BCD duly executed.  Accordingly, on 16 May 1997 he was discharged, in absentia, after completing 3 years and 22 days active military service. 

AR 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, paragraph 3-11, provides that a soldier will be given a punitive discharge (BCD or DD) pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.
Title 10, United States Code, section 1552, as amended does not permit any redress by this Board which would disturb the finality of a court-martial conviction.  The Board is empowered to address the punishment and/or the characterization of service resulting from a court-martial conviction.  The Board may elect to change the punishment and/or the characterization of service 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.  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 this requirement. 

2.  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.  After careful and thorough review of the applicant’s record, the Board determined that clemency was not warranted.

3.  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

 HOF, JR     __JPI___  __RKS__  DENY APPLICATION

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

INDEX

CASE ID	AR2000043399	
SUFFIX		
RECON		
DATE BOARDED	20000919	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	19970516	
DISCHARGE AUTHORITY	AR 635-200 C3	
DISCHARGE REASON	Bad Conduct Discharge	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  	105.6803.0000	
 2.  	105.0100.0000	
 3.  		
 4.		
 5.		
 6.