MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            13 December 2001
	DOCKET NUMBER:   AR2001058447

	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. Deyon D. Battle		Analyst	

The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Mr. Mark D. Manning		Member	
	Ms. Regan K. Smith		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 general discharge.

APPLICANT STATES:  That his career was exemplary and that he rarely got into trouble.

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

He enlisted in the Army on 19 August 1977 for 6 years in the pay grade of E-1.  He successfully completed his training as a medical specialist and he remained on active duty through a series of continuous reenlistments.

On 14 January 1993, while he was serving in the pay grade of E-6, nonjudicial punishment was imposed against the applicant for being derelict in the performance in his duties by willfully failing to maintain a proper senior-subordinate relationship with a lower enlisted female soldier.  His punishment consisted of a reduction in pay grade.

On 1 December 1994, the applicant was convicted by a general court-martial of four specifications of larceny, two specifications of forgery, and making false official statements.  His sentence consisted of a BCD, confinement for 18 months, a reduction to the pay grade of E-1 and total forfeiture of pay.  The convening authority approved only so much of the sentence as provided for a BCD, confinement for 9 months, reduction to the pay grade of E-1 and total forfeiture of pay.

The Army Court of Military Review affirmed the approved sentence on 16 January 1996.  Accordingly, on 29 February 1996, the applicant was discharged pursuant to the sentence of a general court-martial.  However, the Certificate of Release or Discharge (DD Form 214) that he was furnished at the time of his discharge incorrectly reflects that he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had completed 17 years, 11 months and 11 days of total active service and he had 8 months of lost time as a result of his confinement.  He was issued a BCD.

On 29 February 1996, the applicant submitted an Application for the Review of Discharge or Dismissal (DD Form 293) to the Army Discharge Review Board requesting that his discharge be upgraded.  This Board has accepted his DD Form 293 in lieu of DD Form 149.

Army Regulation 635-200, chapter 3, section IV 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.

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.  The actions by the Army in this case were proper, and there is no doubt to be resolved in favor of the applicant.

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 has noted the applicant’s contentions.  However, his records show that prior to his court-martial conviction, he had NJP imposed against him for being derelict in the performance in his duties.  He was convicted of larceny, making false official statements and forgery.  He was properly discharged pursuant to a sentence by a general court-martial and considering the nature of his offenses, the type of discharge that he received appropriately reflects the character of his service.

4.  The Board has also noted that the applicant’s DD Form 214 is administratively flawed, as it reflects that he was discharged in lieu of trial by court-martial instead of as a result of a court-martial conviction.  He was also assigned incorrect reentry and separation codes.  However, correcting the DD Form 214 to properly code and annotate the reason for his separation under a BCD is inconsistent with the general policy of the Board not to place an applicant in a worse position than the one that he enjoyed before he made his application.

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

___sac__  ___mdm _  __rks ___  DENY APPLICATION

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

INDEX

CASE ID	AR2001058447	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/12/13	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	675	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  678	144.6803	
2.		
3.		
4.		
5.		
6.