MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           10 October 2001         
	DOCKET NUMBER:   AR2001057242

	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. Luther L. Santiful		Chairperson	
	Mr. Charles Gainor		Member	
	Mr. Joe R. Schroeder		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:  In effect, that his bad conduct discharge (BCD) be upgraded.

APPLICANT STATES:  That his separation is representative of "the type of [nonsense] that goes on" in the military and that the Army owes him a years' pay.

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

He enlisted in the Regular Army (RA) on 11 September 1979 for a period of 3 years and training in military occupational specialty (MOS) 13B (Cannon Crewman).  He completed basic and advanced individual training and was assigned to Germany on 3 January 1980.

On 3 December 1980, the applicant was convicted by a special court-martial of 
four specifications of assault against fellow service members.  He was sentenced to forfeiture of $200.00 pay per month for 4 months and confinement at hard labor for 4 months.  He was transferred to the United States Army Retraining Brigade, Fort Riley, Kansas where he served his sentence from 3 December 1980 through 8 January 1981.

On 14 January 1981, the unexecuted portion of the applicant's sentence to confinement was suspended and, on 4 March 1981, the unexecuted portion of his sentence pertaining to forfeiture of pay was suspended.  On 30 March 1981, he was assigned to Fort Campbell, Kentucky.

On 17 September 1981, the applicant's installation check-cashing privileges were suspended.  The facts surrounding this matter are not contained in the available records.

On 5 October 1981, the applicant was convicted by a special court-martial of three specifications of disobeying a lawful order on 26 June and on 6 and 9 July 1981.  He was also convicted of failure to repair on 7 and 9 July 1981.  He was sentenced to be confined at hard labor for 2 months and to forfeiture $100.00 pay per month for 2 months.

On 25 September 1982, the applicant received a letter of counseling from his battalion commander.  The subject of the counseling is unknown (the counseling statement is not a matter of record). 

In December 1982, he received a civil conviction for joyriding.  He was fined $200.00, but the sentence was suspended for 11 months and 29 days.

On 7 March 1983, a bar to reenlistment was initiated against the applicant.  Among other things, the applicant's commander cited three nonjudicial punishments (NJP's) that the applicant received on 19 March, 25 April and 11 August 1980 (these documents are no longer contained in the available records); the 3 December 1980 and the 5 October 1981 courts-martial actions; the suspension of his installation check-cashing privileges, and his December 1982 civil conviction as the bases for his recommendation. 

On 17 March 1983, the applicant indicated in a statement written in his own behalf that he was dedicated to his profession and that he felt the bar was "double jeopardy," because his civil conviction had nothing to do with the military. He requested that the barring action be remitted.  On 25 March 1983, the bar to reenlistment was approved.

On 14 April 1983, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failure to go to his appointed place of duty at the prescribed time on 2 April 1983.  His punishment included reduction from pay grade E-3 to pay grade E-2, forfeiture of $100.00 pay per month for 1 month and 14 days' extra duty.  

On 3 June 1983, the applicant was convicted by a special court-martial of threatening a noncommissioned officer (NCO) in a belligerent, contemptuous manner on 11 April 1983; of failure to go to his appointed place of duty at the time prescribed on 18, 22 and 25 April 1983; of being disrespectful in language towards a NCO on 20 April 1983; and of being absent from his unit on 29 April 1983.  He was sentenced to confinement at hard labor for 6 months, forfeiture of $382.00 pay per month for 6 months, and to be separated with a BCD.  

On 22 July 1983, the convening authority approved the adjudged sentence.  The record of trial was forwarded to the United States Army Court of Military Review for appellate review. 

On 28 October 1983, that portion of the sentence pertaining to confinement having been served, the applicant was released from confinement and placed on excess leave (leave without pay) pending completion of his appellate review.  On 29 May 1984, the United States Army Court of Military Review affirmed the findings of guilty and the approved sentence.

On 11 December 1984, the applicant was discharged in absentia under the provisions of chapter 3, Army Regulation 635-200 with a BCD.  He had completed 4 years, 7 months, and 7 days of active military service.  He also had 234 days lost time due to AWOL and confinement.

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 dishonorable discharge (DD) or 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 available records contain evidence that indicates the applicant was a habitual offender who continuously committed acts of misconduct.  He has established no basis for clemency.

4.  There is no evidence that the applicant is entitled to any back pay and he has provided no evidence to the contrary.  No pay records were available for review.  It is noted that the time the applicant spent on excess leave awaiting completion of his appellate review was not payable.

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

__LLS___  ___CG__  __JRS___  DENY APPLICATION

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

INDEX

CASE ID	AR2000050303	
SUFFIX		
RECON	20011010	
DATE BOARDED	20010724	
TYPE OF DISCHARGE	(BCD)	
DATE OF DISCHARGE	19820812	
DISCHARGE AUTHORITY	AR 635-200, Chapter 3  	
DISCHARGE REASON	A68.00	
BOARD DECISION		
REVIEW AUTHORITY		
ISSUES         1.	144.6800	
2.		
3.		
4.		
5.		
6.