MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           2 May 2002
	DOCKET NUMBER:   AR2002068550

	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. Fred N. Eichorn		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Christopher J. Prosser		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 an upgrade of his discharge would provide him a second chance and the opportunity to clear his name.

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

On 26 August 1986, the applicant enlisted in the Regular Army for 3 years.  He was trained in and awarded military occupational specialty (MOS) 76V (Material Storage and Handling Specialist) and the highest rank he attained during his active duty tenure was private/E-2.

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 the following two occasions: 12 June 1987, for being absent from two guard duty formations, failing to go to another formation, and wrongfully possess with intent to deceive a military pass; and 11 July 1987, for being disrespectful in language toward a noncommissioned officer (NCO) and disobeying a lawful order.  It also shows that in August 1987, he was barred from reenlistment based on the incidents for which this NJP was imposed. 

On 16 October 1987, the applicant was convicted in accordance with his pleas by a general court-martial (GCM) of two specifications of being absent without leave (AWOL), disobeying a lawful order by a commissioned officer, two specifications of the wrongful distribution of marijuana, two specifications of the wrongful possession of marijuana, wrongful possession of methamphetamine, and larceny of military property of a value less than $100.00.  The resultant sentence included a total forfeiture of all pay and allowances, confinement for 18 months, and a BCD. On 3 December 1987, the convening authority approved the sentence and directed it be executed, with the exception of the portion pertaining to the BCD, and he suspended the adjudged confinement in excess of 15 months for one year. 

Pursuant to GCM Order Number 528, dated 9 August 1988, issued by Headquarters, United States Army Correctional Facility, Fort Riley, Kansas, the applicant’s sentence was finally affirmed and the BCD portion was ordered to be executed.  Accordingly, on 19 August 1988, the applicant was discharged after completing a total of 11 months and 16 days of creditable active military service and having accrued 351 days of time lost due to AWOL and 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 applicant’s contention that an upgrade of his discharge would provide him a second chance and the opportunity to clear his name. 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

    FNE           WTM            CJP     DENY APPLICATION

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

INDEX

CASE ID	AR2002068550	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/05/02	
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.	110.0000	
2.		
3.		
4.		
5.		
6.