MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           5 February 2002
	DOCKET NUMBER:   AR2001062575

	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. June Hajjar		Chairperson	
	Ms. Karol A. Kennedy		Member	
	Mr. Roger Able		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 all charges be expunged from his record and that his dishonorable discharge (DD) be upgraded to a general, under honorable conditions discharge (GD).

APPLICANT STATES:  In effect, that his record contains faulty derogatory information based upon a biased, faulty, and inadequate investigation, which resulted in his being convicted for a crime he did not commit.  He claims that the court-martial charges that were preferred against him stem from a single and relatively minor incident involving a $200.00 unauthorized credit card withdrawal. This incident was improperly extended to include overly broad court-martial charges that resulted in a conviction that improperly gives the impression that he was convicted of serious felony offenses and these continue to affect his ability to gain employment, care for his family, and inhibit his ability to fully exercise his constitutional and civil rights. In support of his application, he provides a copy of General Court-Martial Order (GCMO) Number 32, dated 16 October 1986, issued by Headquarters, 5th Infantry Division (Mechanized), Fort Polk, Louisiana.

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

On 15 November 1983, the applicant entered active duty in the Regular Army for 3 years.  He was trained in and awarded military occupational specialty (MOS) 13B (Cannon Crewmember) and the highest rank he attained during his active duty tenure was specialist/E-4 (SPC/E-4).

The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition.  However, it does contain an extensive disciplinary history that includes his acceptance of nonjudicial punishment (NJP) on the following three separate occasions for the offenses indicated:  22 January 1985, for making a false report that he lost his ration control plate; 14 January 1986, for two specifications of failing to go to his prescribed place of duty; and 
4 June 1986, for six specifications of failing to go to his prescribed place of duty. 

On 17 September 1986, the applicant plead guilty and was convicted by a general court-martial (GCM) of the following offenses:  escaping custody; resisting apprehension by a military police investigator; stealing a bank card, the property of a noncommissioned officer (NCO); disobeying the lawful command of a superior commissioned officer; breaking restriction; wrongfully possessing a military identification card with the intent to deceive; signing a false official statement with the intent to deceive; and larceny of United States (US) currency of a value of $200.00, the property of a NCO.  The resultant sentence included a forfeiture of all pay and allowances, confinement for 20 months, and a DD.  On 16 October 1986, the convening authority approved the sentence and ordered all but the DD portion to be executed.

On 16 April 1987, the US Army Court of Military Review examined the applicant’s record of trial and found it to be legally sufficient to support the findings of guilty and the resultant sentence.  On 3 September 1987, the unexecuted portion of the sentence in regard to the DD portion of the sentence was ordered executed and on 30 October 1987, the applicant was separated accordingly.  At the time of his discharge, he had completed a total of 2 years, 7 months, and 7 days of creditable active military service and had accrued 489 days of lost time due to confinement.

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 contentions of the applicant that his court-martial conviction was based on a faulty investigation that resulted in charges being preferred against him for serious crimes based on a minor incident and that impaired his ability to gain employment, care for his family, and partake of his constitutional and civil rights.  However, the Board finds none of these factors are sufficiently mitigating to warrant the requested relief.  

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.  However, in this case, the Board finds the evidence of record confirms that the applicant’s conviction and discharge were effected in accordance with applicable law and regulations and that his trial by court-martial was warranted by the gravity of the offenses with which he was charged. 

3.  Notwithstanding the applicant’s contentions and desires, the Board finds that the type of discharge received by the applicant appropriately characterizes the misconduct for which he was convicted and accurately reflects his overall record of service.  Therefore, the Board concludes that clemency is not warranted in this case.

4.  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.

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

___JH___  __KAK___  __RA___  DENY APPLICATION

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

INDEX

CASE ID	AR2001062575	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/02/05	
TYPE OF DISCHARGE	(DD)	
DATE OF DISCHARGE	19871030	
DISCHARGE AUTHORITY	AR635-200 Chapter 3  	
DISCHARGE REASON	As a result of Court-martial	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	105.00	
2.		
3.		
4.		
5.		
6.