MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            20 March 2001  
	DOCKET NUMBER:   AR2000045960

	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. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Mr. William D. Powers		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 an honorable discharge.

APPLICANT STATES:  That he believes that he was wrongfully accused, discriminated against and then discharged with a BCD.  An officer came to the enlisted men's club to attack him; the officer was a martial arts expert.  He weighed at least 100 pounds more than he did and he badly beat him.  His hospital treatment records support his contentions. 

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

That on 10 July 1980, he enlisted in the Regular Army for a period of 3 years and training in military occupational specialty (MOS) 12C (Bridge Crewman).  He completed basic and advanced individual training and on 9 October 1980, he was assigned to permanent duty at Fort Belvoir, Virginia. 

While assigned to Fort Belvoir, the applicant attended the Primary Noncommissioned Offer Course (PNCOC) between 7 January, and 
4 February 1983.  He failed to achieve course standards for academic reasons. He was unable to achieve task mastery at a sufficient speed to be capable of attaining the course training objectives.  The recommendation was that he receive no further schooling until his commander made preparations for him to attain the course academic standards.  His demonstrated abilities were rated as unsatisfactory in a) written communications, b) oral communications, 
c) leadership skills and e) student's research ability.  He was rated satisfactory in d) contribution to workgroup.

On 16 February 1983, nonjudicial punishment (NJP) was imposed against him under the provisions of Article 15, Uniform Code of Military Justice, for being drunk at an indoor range and for disobeying a lawful order given by a noncommissioned officer (NCO) to leave an indoor range on 24 January 1983; and for failure to go to his appointed place of duty at the time prescribed (twice) on 28 January 1983.  His punishment included reduction from pay grade E-4 to pay grade E-3, forfeiture of pay, extra duty and restriction. 

On 29 March 1983, NJP was imposed against him for being disrespectful in language towards an NCO and for disobeying a lawful order of an NCO, twice on
9 March 1983.  His punishment included reduction from pay grade E-3 to pay grade E-2, forfeiture of pay, extra duty and restriction.

On 9 May 1983, a local bar to reenlistment was imposed on the applicant as a result of his poor appearance, his poor attitude, for his lack of respect for NCOs, and for his inferior duty performance.  He did not appeal or rebut the bar to reenlistment.

On 11 August 1983, the applicant was convicted by a special court-martial of 
being disrespectful in language towards a commissioned officer and for striking a commissioned officer on 29 June 1983.  He was sentenced to reduction from pay grade E-2 to pay grade E-1, forfeiture of $100 pay per month for 6 months, to be confined at hard labor for 2 months and to be separated with a BCD.

On 23 August 1983, the convening authority approved the sentence adjudged.  The record of trial was forwarded to the United States Court of Military Review.

In September 1983, the available medical records show that, the applicant sprained his right ankle while playing basketball/volleyball.  The records do not show that he experienced any other physical injury while on active duty. 

On 5 October 1983, he was released from confinement and on an unknown date, he was placed on excess leave pending the appellate review of his BCD.  

On 19 December 1984, the United States Court of Military Review affirmed the findings and approved the sentence and the appropriate authority ordered the BCD to be duly executed. 

On 19 December 1984, the applicant was discharged, in absentia, under the provisions of chapter 3, Army Regulation 635-200, with a BCD as a result of court-martial.  His DD Form 214 (Certificate or Release or Discharge from Active Duty) shows that he completed 4 years, 3 months and 14 days of active military service and had 55 days lost time due to being in military confinement.

On 4 June 1997, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge. 

Army Regulation 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 BCD 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.

Court-martial convictions stand as adjudged or modified by appeal through the judiciary process.  In accordance with Title 10, United States Code, Section 

1552, the authority under which this Board acts, the ABCMR is not empowered to change a discharge due to matters which should have been raised in the appellate process, rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only 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, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

3.  The Board found no evidence of arbitrary or capricious actions by the applicant's command.  There is nothing in the applicant's record to show that anyone ever discriminated against him and he has submitted nothing to the contrary.  Further, there has been no basis established to grant clemency in this case.

4.  The available records do not show that an officer assaulted the applicant and the applicant has provided no evidence to the contrary.  Further, the medical evidence available to the Board fails to support the applicant's claim of being assaulted.

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

__fne___  __rjw___  __wdp____  DENY APPLICATION

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

INDEX

CASE ID	AR2000045960	
SUFFIX		
RECON		
DATE BOARDED	20010320	
TYPE OF DISCHARGE	(BCD)	
DATE OF DISCHARGE	19841219	
DISCHARGE AUTHORITY	AR 635-200, Chapter 3  	
DISCHARGE REASON	A68.00	
BOARD DECISION		
REVIEW AUTHORITY		
ISSUES         1.	144.6800	
2.		
3.		
4.		
5.		
6.