MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           16 October 2001
	DOCKET NUMBER:   AR2001059622

	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. Raymond V. O’Connor 		Chairperson	
	Ms. Regan K. Smith		Member	
	Mr. Donald P. Hupman, Jr.		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 would like the Board to consider changing his discharge.  He claims to have had plenty of time to get his life straight and that an upgrade of his discharge would allow him to receive veterans benefits to purchase a house and attend college.  

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

On 19 September 1989, the applicant enlisted in the Regular Army for 5 years.  He was trained in and awarded military occupational specialty (MOS) 31K (Combat Signaler) and the highest rank he attained during his active duty tenure was private first class/E-3.

The applicant’s record reveals no acts of valor, significant achievement, or service warranting special recognition.  However it does contain a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) on 
27 November 1991 for being disrespectful in language and deportment toward a noncommissioned officer (NCO).  It also shows that on 14 April 1992 he was barred from reenlistment based on the incidents for which this NJP was imposed. 

On 2 July 1992, the applicant was convicted by a general court-martial of striking a NCO while she was in the execution of her office; for being disrespectful to a NCO who was in the execution of her office; and for wrongfully and unlawfully making a false statement under oath.  The resultant sentence included a forfeiture of $392.00 pay per month for 24 months, a reduction to the rank and pay grade of private/E-1, confinement for 2 years, and a BCD.  On 25 September 1992, the convening authority approved the sentence and ordered all but the BCD portion to be executed.

On 31 March 1993, the United States Army Court of Military review found that the court erred in the court-martial proceedings by failing to announce the applicant’s guilt of charge I but it held that this error was harmless and affirmed the findings and sentence.  On 12 July 1993, the United States Court of Military Appeals denied the applicant’s petition to review the decision of the United States Army Court of Review and general court-martial order number 56, dated 12 August 1993, issued by Headquarters, 4th Infantry Division, Fort Carson, Colorado, directed based on the findings and sentence having been finally affirmed that the BCD portion of the sentence be executed.  

Accordingly, on 30 November 1993 the applicant was separated after completing 2 years, 9 months, and 13 days of creditable active military service and having accrued a total of 1 year, 4 months, and 28 days of time lost due to confinement.

The Manual for Courts-Martial Table of Maximum Punishments, in effect at the time, provided that the maximum punishment the applicant could have received based on his conviction was 8 years confinement, total forfeiture of pay, reduction to the rank of private (E-1), and a BCD or 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 has had time to get his life straight and now desires to receive veterans education and home loan benefits to better care for his family.  However, it finds that these factors alone do not provide a sufficient basis for an upgrade of his discharge. 

2.  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.  The evidence of record confirms that the applicant’s conviction and discharge were effected in accordance with applicable law and regulations in effect at the time and that his trial by court-martial was warranted by the gravity of the offenses with which he was charged. 

5.  Notwithstanding the applicant’s contentions and desires, the Board finds that the type of discharge appropriately characterizes the misconduct for which he was convicted and accurately reflects his overall record of service.  Therefore, it finds there is an insufficient basis to grant clemency in this case. 

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

__RVO__  ___RKS__  __DPH__  DENY APPLICATION

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

INDEX

CASE ID	AR2001059622	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/10/16	
TYPE OF DISCHARGE	(BCD,)	
DATE OF DISCHARGE	19931130	
DISCHARGE AUTHORITY	AR 635-200, Chapter 3.  .  .  .  .  	
DISCHARGE REASON	Court-Martial	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	105.00	
2.		
3.		
4.		
5.		
6.