MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:           14 September 2000 
	DOCKET NUMBER:   AR2000044249

	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. McKim-Spilker		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Margaret K. Patterson		Member	
	Mr. Elzey J. Arledge, Jr.		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 honorable.

APPLICANT STATES:  In effect, that at the time of his arrest he needed help with his alcohol problem; that his misconduct was a result of the effect alcohol had over his mind; that he wants to reenter the service; and that he is having problems obtaining employment due to his BCD.

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

He enlisted in the Regular Army (RA) for a period of 3 years on 27 December 1994.  He successfully completed basic combat training at Fort Jackson, South Carolina, and advanced individual training in military occupational specialty 31R (Multi Channel Transmission System Operator) at Fort Gordon, Georgia.  He was assigned to the 2nd Infantry Division, Camp Casey, Korea.

The applicant’s record documents that the highest permanent rank he held on active duty was private/E-2 and that the record contains no documented acts of valor, achievement, or service warranting special recognition.

On 2 April 1996 the applicant reported to his defense counsel that he did not remember the events that occurred on the 23rd of December 1995.  Witnesses testified that his behavior was extremely out of character and classified as “insane and irrational.”  It took six people to subdue the applicant after he assaulted his friends. 

A sanity board was convened on 25 April 1996 to evaluate the applicant.  The board reported that at the time of the offenses, the applicant did not have a severe mental disease or defect.  However, he was diagnosed as alcohol dependent and with alcohol intoxication delirium at the time of his offenses on
23 December 1995.  The psychiatrist reported that a person’s judgment while experiencing an episode of alcohol intoxication delirium would clearly be altered due to the intoxication; that a person would experience a change in cognition and consciousness, and problems focusing their attention, disturbance of sensation, seeing things, memory deficit, disturbance of thought processes, inability to think rationally, and finally “blackouts.”  The board determined that, at the time of the alleged criminal conduct, the applicant was able to appreciate the nature and wrongfulness of his conduct.

On 2 July 1996 he was convicted by a general court-martial of 6 specifications of assault consummated by a battery: two specifications of assault with means likely to produce grievous bodily harm; and, one specification of drunk and disorderly conduct.  He was sentenced to a BCD, confinement at hard labor for
8 months, a forfeiture of $700 pay per month for 8 months, and a reduction to private/E-1.
The applicant was in confinement from 2 July 1996 to 16 January 1997.  On
17 January 1997 he was restored to duty and on 11 March 1997 he was placed on excess leave status pending completion of appellate review of his general court-martial.

On 16 October 1997 the U. S. Army Court of Military Review affirmed the findings and sentence as approved by the appropriate authority.

On 5 November 1997 the applicant was discharged under the provisions of Paragraph 3, AR 635-200, with a DD Form 259A (Bad Conduct Discharge Certificate).  He was credited with 2 years, 3 months, and 20 days of active military service.

AR 635-200, in effect at the time, set 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 dishonorable) 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.  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.  

2.  The Board noted the applicant’s candid admission of a drinking problem and the supporting evidence in the record indicating that he could have suffered from Alcohol Intoxication Delirium.  However, the Board determined that his alcohol abuse did not excuse misconduct or the nature of his offenses, and that clemency was not warranted.  

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 this 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

__RVOC, JR _MKP _  _EJA,JR_  DENY APPLICATION

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

INDEX

CASE ID	AR2000044249	
SUFFIX		
RECON		
DATE BOARDED	20000913	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	19971105	
DISCHARGE AUTHORITY	AR 635-200 C3	
DISCHARGE REASON	BAD CONDUCT DISCHARGE	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES        1.  	144.9105.0000	
2.  	144.9319.0000	
3.  	144.0100.0000	
4.		
5.		
6.