MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           26 July 2001
	DOCKET NUMBER:   AR2001051438

	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. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. Hubert O. Fry, Jr.		Member	
	Mr. Eric N. Andersen		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 a fully honorable discharge. 

APPLICANT STATES:  In effect, that he served in the Army for 6 years and he believes that his discharge should be upgraded based on this service.

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

He enlisted in the Florida Army National Guard on 13 May 1975 and served as an infantryman until separated on 14 May 1977.  On 17 October 1977, he enlisted in the US Army Reserve (USAR) Delayed Entry/Enlistment Program (DEP).  On 22 November 1977, he enlisted in the Regular Army for 3 years.

On 30 August 1978, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice for wrongfully having in his possession more or less of a habit forming narcotic drug to wit: an undetermined amount of marijuana on 2 August 1978.  His punishment included reduction from pay grade E-3 to pay grade E-1, forfeiture of $198.00 pay per month for 2 months and 45 days extra duty.  

On 1 June 1979, he was advanced to pay grade E-2.  On 1 December 1979, he was advanced to pay grade E-3.

On 29 March 1979, he accepted NJP for stealing a purse containing German currency of a value of about $22.00 and for unlawfully carrying a concealed weapon (a lock blade knife) on or about 29 December 1978.  His punishment included forfeiture of $75.00 pay for 1 month and 14 days of extra duty.  

On 15 August 1980, he accepted NJP for failure to go to his appointed place of duty at the time prescribed on 4 August 1980.  His punishment included forfeiture of $75.00 pay for 1 month (suspended) and 7 days' restriction and extra duty.  

On 26 August 1980, the applicant was convicted by a special court-martial of committing an assault upon another service member by cutting him on the face with a knife.  He was sentenced to receive a BCD, confinement at hard labor for 5 months, forfeiture of $298.00 pay per month for 5 months and reduction from pay grade E-3 to pay grade E-1.

On 18 November 1980, only that portion of the sentence that provided for a BCD, confinement at hard labor for 4 months, forfeiture of $298.00 pay per month for 4 months and reduction from pay grade E-3 to pay grade E-1 was approved.  However, the execution of the BCD was suspended pending an appellate review.

On 11 December 1980, the applicant was released from confinement and placed on excess leave.  He declined a separation physical examination.

On 15 July 1981, the United States Court of Military Review affirmed the finding, and approved the sentence of the special court-martial.

On 29 July 1982, he was discharged under the provisions of chapter 11, Army Regulation 635-200, as a result of a court-martial (other) with a BCD.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he had served 4 years, 4 months, and 22 days of active military service on the enlistment under review.  He had 78 days lost time due to being in confinement.  He also was retained in service 615 days past his normal expiration term of service date for the convenience of the government.  Additionally, he had 3 months and 22 days of prior active service and he had 2 years, 4 months and 16 days of prior inactive service.

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 Army Board for Correction of Military Records 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.  Trial by court-martial was warranted by the gravity of the offense 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.

2.  The Board fully considered all of the applicant's honorable service as well as his infractions of discipline, the extent thereof, and the seriousness of the offenses. The Board concluded that the discrediting entries in his record were not outweighed by prior or subsequent service of sufficient merit to mitigate his conduct or to warrant clemency.

3.  In view of the foregoing, there is no basis to grant 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

____RVO  ___HOF_  ____ENA_  DENY APPLICATION

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

INDEX

CASE ID	AR2001051438	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010726	
TYPE OF DISCHARGE	(BCD)	
DATE OF DISCHARGE	19820729	
DISCHARGE AUTHORITY	AR635-200, CH 11 	
REASON	A04.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.0400	
2.		
3.		
4.		
5.		
6.