MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           04 JUNE 2002
	DOCKET NUMBER:   AR20025068240

	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. Gale J. Thomas		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Arthur A. Omartian		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 records be corrected by upgrading his bad conduct discharge to honorable.

APPLICANT STATES:  That his discharge was inequitable because it was based on one isolated incident in nine years of service with no other adverse action; that the testimonial evidence specifically stated that his behavior and health were adversely affected after the Persian Gulf War; that he had six months remaining on active duty at the time of his discharge, and he was serving on a hardship tour in West Germany and had been extended for the convenience of the Government; and that his accomplishments after his discharge are indicative of an individual determined to succeed in spite of adversities.  In support of his request, the applicant submits copies of his court-martial proceedings, custody papers, testimonies from acquaintances and his educational achievements. 

COUNSEL CONTENDS:  Counsel makes no contentions. 

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

He enlisted in the Regular Army on 20 August 1985 for a period of 3 years.  He completed one station unit training (OSUT) at Fort Sill, Oklahoma.  In December 1985, upon completion of OSUT he was awarded the Military Occupational Specialty (MOS) 13B (Cannoneer).  

The applicant was promoted to pay grades E-3, E-4 and E-5 on 20 August 1986, 1 May 1987, and 1 July 1989, respectively.

On 28 August 1992, while assigned to Germany, the applicant’s commander preferred court-martial charges against him and recommended he be tried by a general court-martial for resisting apprehension, damaging military property of a value less than $100.00 (forced open a closed door in government leased quarters), assault consummated by battery (struck his spouse on the face with his closed fist), aggravated assault with a dangerous weapon (struck his spouse on her face, arms and hand with a hot clothes iron), housebreaking, and breaking restriction.

On 27 October 1992, the applicant, represented by legal counsel, pled guilty to the aforementioned charges and was convicted by general court-martial.  The record of trial indicates that the applicant was questioned on each element of the charges by the Military Judge and after indicating he understood said elements, pled guilty to each.

The applicant’s court-martial record makes only passing reference to one witness’ observations that the applicant had changed after returning from the Gulf War, who stated, “He start[ed] more or less  staying to himself”.  This reference is insufficient to establish that the applicant and his wife, at that time, suffered from post traumatic stress disorder or Gulf War Syndrome. 

The applicant was sentenced to a bad conduct discharge, confinement for nine months and reduction to pay grade E-1. 

On 31 March 1993, the United States Army Court of Military Review affirmed the findings and sentence.  The execution of the applicant’s punitive discharge was withheld pending completion of further appellate review.

On 4 May 1993 the applicant was released from confinement and placed on excess leave pending appellate review of his bad conduct discharge.

General Court-Martial Order 12, dated 27 February 1995, stated that the U.S. Army Court of Military Review had finally affirmed the findings and sentence to a bad conduct discharge and ordered the discharge to be duly executed.  Accordingly, on 20 April 1995 he was discharged, in absentia, after completing 
9 years, 2 months and 12 days of active duty service.

There is no evidence in the available records that the applicant ever petitioned the U.S. Court of Military Appeals for a review of his case.

Army Regulation 635-200, sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, section IV, provides that a soldier will be given a bad conduct discharge 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.

Subsequent to his discharge the applicant earned an Associate of Technology Degree in Building Construction in May 1997 from Bessemer State Technical College, in Alabama, and a Bachelor of Science Degree in Social Work from the University of Alabama in December 2001.

The applicant submits several letters of support from his friends and colleagues.

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.  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.

2.  The applicant’s claim that testimonial evidence was presented at his court-martial hearing that his behavior and health were adversely affected after the Persian Gulf War is not substantiated by the transcript of the hearing.   

3.  While the Board notes the applicant’s post-service conduct and achievements, none of these factors, either individually or in sum, warrant the relief requested.

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 to show that there was an error or injustice in this case.

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

__JLP___  __AAO_     __RKS__  DENY APPLICATION

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

INDEX

CASE ID	AR2002068240	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020604	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.