MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           27 November 2001
	DOCKET NUMBER:   AR2001059564

	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	
	Mr. William Blakely		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Lester Echols		Member	
	Mr. John T. Meixell		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 to an honorable discharge (HD).

APPLICANT STATES:  In effect, that he was never informed that he would receive a BCD as a result of his general court-martial conviction. 

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

He was honorably separated for the purpose of immediate reenlistment on 
29 November 1978 after completing 3 years and 6 months of active military service.  He immediately reenlisted for 3 years and began the period of service under review on 30 May 1978.

The applicant’s record shows that he served in military occupational specialty (MOS) 11B (Infantryman) and the highest rank he attained while serving on active duty was staff sergeant/E-6 (SSG/E-6).  It also shows that during his active duty tenure he earned the following awards:  Good Conduct Medal; Army Achievement Medal (1st OLC); and Army Commendation Medal. 

The applicant’s record shows an extensive disciplinary history that includes his acceptance of nonjudicial punishment (NJP) on the following 7 separate occasions:  28 May 1979, for twice failing to go to his appointed place of duty; 
29 July 1979, for striking a soldier in his face; 7 September 1979, for failure to go to his appointed place of duty (two occasions); 20 September 1979, for being disrespectful towards a commissioned officer; 28 November 1979, for failure to go to his appointed place of duty (two occasions); 15 December 1981, for disobeying a lawful order (two occasions); and 15 September 1986, for attempting to persuade a military policeman not to arrest a soldier for being under the influence of alcohol and for tampering with a blood alcohol test.

On 12 February 1987, the applicant was convicted by a general court-martial of two specifications: assault consummated by a battery and assault with a dangerous weapon.  The resultant sentence included a forfeiture of all pay and allowances, reduction to private/E-1, and a BCD.  On 22 April 1987, the convening authority approved the sentence and ordered it executed with the exception of the BCD portion.  At his request the applicant departed on ordinary leave on 22 May 1987 and was placed in an excess leave status on 8 June 1987.

Pursuant to General Court Martial Order Number 10, dated 12 May 1988, issued by Headquarters, US Army Training Center and Fort Dix, New Jersey the applicant’s sentence was finally affirmed and the BCD portion was ordered to be executed.  On 24 October 1988, he was discharged accordingly after completing a total of 13 years, 10 months, and 25 days of creditable active military service. 

According to the Manual for Courts-Martial, Table of Maximum Punishments, in effect at the time, the maximum punishment the applicant could have received was at least 3 years, 6 months but not more than 8 years, 6 months confinement, total forfeiture of pay and allowances, reduction to the rank of private (E-1), and a BCD or a dishonorable discharge. 

Title 10 of the United States Code, section 1552 as amended does not permit any redress by the Army Board of Correction of Military Records (ABCMR) of the finality of a court-martial conviction and empowers the ABCMR to only change a discharge if clemency is determined to be appropriate.

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 Board notes the applicant’s contention that he was not informed he would receive a BCD as a result of his general court-martial conviction.  However, it finds insufficient evidence to support this claim.

2.  The applicant’s trial by court-martial was warranted by the gravity of the offenses charged.  His 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.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the punishment imposed.

4.  Given the applicant’s serious acts of misconduct, coupled with his extensive disciplinary history, the Board finds the type of discharge directed and the reasons therefor were appropriate and it concludes that clemency is not warranted in this case. 

5.  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.

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

__AAO__   _ _LE __  __JTM___  DENY APPLICATION

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

INDEX

CASE ID	AR2001059564	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/11/27	
TYPE OF DISCHARGE	(BCD)	
DATE OF DISCHARGE	1988/10/24	
DISCHARGE AUTHORITY	AR 635-200, Chapter 3.  .  .  .  .  	
DISCHARGE REASON	Result of Court Martial	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	105.00	
2.		
3.		
4.		
5.		
6.