MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  2 July 2002
	DOCKET NUMBER:  AR2002068343

	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. Paul A. Petty		Analyst	

  The following members, a quorum, were present:

	Ms. Karol A. Kennedy		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Mr. Arthur A. Omartian		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 discharge be upgraded from a bad conduct discharge to a general discharge under honorable conditions.

APPLICANT STATES:  The applicant submits copies of certificates of achievement, appreciation, and training from his military record from 1979 through 1986; a partial copy of a 1988 civil divorce judgment; a certificate from the Plain Truth Holiness Church (location not given) naming the applicant on Father's Day as Father of the Year during the year 1999-2000; a copy of a Fayetteville Police Department, Fayetteville, North Carolina, Criminal Record Check, dated 25 May 1989, stating that their records contained no derogatory information on the applicant from 1982 through 1989; and a certificate of appreciation to the applicant as a volunteer coach of a "Pee Wee" team for the year of 1999.

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

That he enlisted in the Regular Army on 8 November 1977.  He rose to the rank of sergeant, pay grade E-5, as a military policeman.  On 11 July 1985, he was reduced to a specialist four (SP4), pay grade E-4, by an Article 15.  (The 
Article 15 is not currently in his record.)

On 27 August 1985, he was placed in military confinement pending a court-martial.  On 2 July 1985, he was tried by a general court-martial at Fort Jackson, South Carolina.  He was found guilty of, "wrongfully storing a .22 caliber Derringer in an unsecured area, to wit: on the shelf of a bedroom closet, such Derringer being loaded at the time; (and) wrongfully and willfully discharge a firearm, to wit: a .22 caliber Derringer, under circumstances such as to endanger human life, in the housing area at Fort Jackson, South Carolina."  He was sentenced to confinement for 1 year, reduction to pay grade E-1, forfeiture of $100 a month for 12 months, and a Bad Conduct Discharge.  He was so discharged on 2 July 1986.  He had been awarded the Army Achievement Medal, the Army Service Ribbon, the Overseas Service Ribbon, and the Noncommissioned Officer Professional Development Ribbon during his service.

According to Public Law, U.S. Code Title 10, Section 1552, General Military Law, the Army Board for Correction of Military Records may not touch or otherwise change the records or finality of a court-martial, retry elements of or arguments presented before a court-martial or appeals to a court-martial, or change the findings or sentence of a court-martial.  The Board may only consider clemency on the sentence when adequate evidence is submitted to warrant such consideration.

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 only basis on which the Board could change the sentence of a Bad Conduct Discharge ordered by a general court-martial would be on the basis of clemency when adequate evidence is submitted to warrant such clemency.  The applicant has presented documents of achievement, appreciation, and training from his military record from 1979 through 1986 and four documents concerning his post service conduct.  While the applicant is commended for his accomplishments during military service, these accomplishments cannot compensate for the Bad Conduct Discharge or justify upgrade to a general discharge for a military service member who had sworn to uphold and enforce military law.  The applicant is commended for his post service good citizenship as is expected of a responsible member of the community.  However, it is not so meritorious as to justify clemency to grant an upgrade of a Bad Conduct Discharge to a general discharge.

2.  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

___kk___  ___rw___  ___ao___  DENY APPLICATION

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

INDEX

CASE ID	AR2002068343	
SUFFIX		
RECON		
DATE BOARDED	20020702	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	19860702	
DISCHARGE AUTHORITY	AR 635-200, chap 3	
DISCHARGE REASON	As a result of court-martial	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144 – Administrative Discharges	
2.	144.68 – Bad Conduct Discharge	
3.		
4.		
5.		
6.