MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           4 December 2001
	DOCKET NUMBER:   AR2001059696

	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:

	Ms. JoAnn H. Langston		Chairperson	
	Ms. Margaret K. Patterson		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: In effect, that his bad conduct discharge (BCD) be upgraded to a general, under honorable conditions discharge (GD)

APPLICANT STATES:  In effect, that his discharge was not equitable and that he could not have assaulted six individuals during an altercation at the same time.  He states that the Army was only interested in using him as an example and discharging him in the quickest time possible.

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

On 28 March 1979, he enlisted in the Regular Army for 3 years and he continuously served on active duty until 19 November 1981 when he was honorably discharged for the purpose of immediate reenlistment.  On 
20 November 1981, he reenlisted for the enlistment under review.  He was trained and served in military occupational specialty (MOS) 76V (Material Storage Handler Specialist) and the highest rank he attained while serving on active duty was specialist/E-4.

The applicant’s record reveals no acts of valor, significant achievement, or service warranting special recognition during his active duty tenure.  However it does contain an extensive disciplinary history that includes his receipt, of nonjudicial punishment (NJP) on two separate occasions.  The first on 
19 October 79, for disobeying a lawful order and the second on 19 August 1981, for slapping a female soldier in the face.

On 3 May 1982, the applicant plead guilty to two specifications of assault consummated by a battery, five specifications of aggravated assault, and three specifications of communication of a threat.  He was found guilty of these offenses by a general court-martial and the resultant sentence included a forfeiture of all pay and allowances, a reduction to the rank and pay grade of private/E-1, confinement for 18 months, and a BCD.  On 1 June 1982, the convening authority approved the sentence and ordered all but the BCD portion of the sentence to be executed.

On 9 November 1982, the United States Army Court of Military Review examined the record of trial and found it to be legally sufficient to support the findings of guilty and the sentence imposed.  On 2 December 1982, the applicant petitioned for a grant of review in the United States Court of Military Appeals.  The Court of Appeals dismissed two specifications of communicating a threat and one specification of assault consummated by battery.  However, it affirmed the remaining charges, specifications, and the sentence imposed by the general court-martial. 

On 8 April 1983, the unexecuted portion of the sentence pertaining to the BCD was ordered executed and on 29 April 1983, the applicant was separated accordingly.  At the time of his discharge, he had completed 2 years, 11 months, and 15 days of creditable active military service and he had accrued a total of 413 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 15 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 noted the contentions of the applicant that his BCD was unjust because it was improbable that he could have assaulted 6 individuals at the same time and that his conviction was the result of the Army wishing to make an example of him.  However, the Board finds these claims lack merit and are not supported by the evidence of record or any independent evidence he has provided. 

2.  The applicant’s trial by court-martial was warranted by the gravity of the offenses for which he was charged. His conviction and discharge were effected in accordance with applicable law and regulations and his discharge appropriately characterizes the misconduct for which he 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 disciplinary history coupled with his undistinguished overall record of service, the Board finds the type of discharge directed and the reasons therefore were appropriate. Thus, the Board finally concludes that clemency it 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

__JHL__   _ _MKP__  __ENA__  DENY APPLICATION

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

INDEX

CASE ID	AR2001059696	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/12/04	
TYPE OF DISCHARGE	(BCD,)	
DATE OF DISCHARGE	19830429	
DISCHARGE AUTHORITY	AR535-200 .  .  .  .  .  	
DISCHARGE REASON	Court-Martial	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	105.00	
2.		
3.		
4.		
5.		
6.