MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:            29 March 2001  
	DOCKET NUMBER:   AR2000048172

	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. John N. Slone		Chairperson	
	Mr. Lester Echols		Member	
	Mr. Christopher J. Prosser		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:  In effect, that he believes his discharge is inequitable because it was based on one isolated incident in more than 8 years of honorable service, with no other adverse actions.  His decorations and awards reflect the type of soldier that he was.  His record still reflects a kidnapping charge of which he was cleared.  The incident on which his BCD was based occurred because he would not give his wife the money, and everything else that she wanted, after he found out that she had engaged in adultery.  He submits a letter written in his own behalf; an Associate in Arts Degree; a Certificate of Anger Management/Emotional Awareness Course; and a Certificate of Achievement for Violent Offenders in support of his request. 

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

That he had prior honorable service in the Regular Army (RA) from 8 October 
1982-7 April 1986.  On 8 April 1986, while assigned to Korea, he reenlisted in the RA for a period of 6 years, pay grade E-4 and his previous military occupational specialty (MOS) 76Y (Unit Supply Specialist).  On 23 May 1986, he was assigned to Fort Knox, Kentucky.  On 21 October 1988, he was assigned to Germany.

On 28 December 1989, the applicant was convicted by a general court-martial of unlawfully pushing his wife and wrongfully communicating a threat to his wife to kill her on 8 October 1989; he was also convicted of intentionally inflicting grievous bodily harm upon his wife with a knife and with his fist on 10 October 1989.  He was sentenced to reduction from pay grade E-4 to pay grade E-1, forfeiture of $250.00 pay per month for 10 months, to be confined at hard labor for 10 months and to be discharged with a BCD.

On 20 March 1990, the convening authority approved the sentence adjudged.  The record of trial was forwarded to the United States Court of Military Review.

On 27 August 1990, he was released from confinement and he was placed on excess leave pending the appellate review of his BCD.  

On 26 October 1990, the United States Court of Military Review affirmed the findings and approved the sentence. 

On 1 April 1991, the appropriate authority ordered the BCD duly executed.  On 10 April 1991, 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 7 years, 9 months and 28 days of active military service and had 
245 days lost time due to being in military confinement.  His DD Form 214 shows that he was awarded the Army Commendation Medal; the Army Achievement Medal; the Good Conduct Medal, two awards; the Noncommissioned Officer Professional Development Ribbon; the Army Service Ribbon; the Overseas Service Ribbon; the Marksmanship Badge Rifle M-16; and the Hand Grenade Badge (Expert).

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 did not conclude that the applicant's good service nor his awards were sufficient to establish a basis to grant clemency in this case.

4.  Further, the Board commends the applicant for his accomplishments.  However, post service accomplishments alone do not provide the Board a basis upon which to grant clemency.

5.  The available record shows no evidence of a kidnapping charge.

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

________  ________  ________  DENY APPLICATION

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

INDEX

CASE ID	AR2000045960	
SUFFIX		
RECON		
DATE BOARDED		
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.