MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           11 July 2002
	DOCKET NUMBER:   AR2002068597

	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. Ted S. Kanamine		Chairperson	
	Mr. John T. Meixell		Member	
	Mr. Harry Oberg		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 dishonorable discharge (DD) be upgraded.

APPLICANT STATES:  The applicant has offered no argument or explanation with his application to support his request.  

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

On 25 June 1974, the applicant entered active duty in the Regular Army for 
3 years.  He was trained in and awarded military occupational specialty (MOS) 76Y (Supply Specialist).  The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition, and it confirms that the highest rank he attained during his active duty tenure was specialist four/E-4 (SP4/E-4).  

The applicant’s record also shows that he received non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following three occasions for the offenses indicated:  24 October 1974, for being disrespectful towards a commissioned officer; 11 March 1975, for being absent from his appointed place of duty; and 25 May 1976, for failure to repair.

On 18 April 1977, the applicant was convicted by a general court-martial (GCM) of attempted robbery and robbery.  The resultant sentence included forfeiture of all pay and allowances, reduction to pay grade E-1, confinement for 22 months, and a DD.  On 17 May 1977, the convening authority approved the sentence with the modification that the confinement portion of the sentence in excess of 
18 months be suspended.  He further directed that pending completion of the appellate review, the applicant would be confined in the United States Disciplinary Barracks, Fort Leavenworth, Kansas. 

On 31 January 1978, the United States 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.  The applicant petitioned for a grant of review in the United States Court of Military Appeals and on 12 May 1978, this petition was denied.

On 30 May 1978, the DD portion of the applicant’s sentence was ordered executed, and on 30 June 1978, he was discharged accordingly.  At the time of his discharge, he had completed a total of 1 year, 11 months and 13 days of creditable active military service, and had accrued a total of 742 days of time lost, 671 days of which were subsequent to his normal expiration of term of service (ETS).

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.  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.  In this case, the Board finds 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. 

2.  In addition, 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.

3.  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.

4.  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

__TSK__  __JTM__  __HBO___  DENY APPLICATION

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

INDEX

CASE ID	AR2002068597	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/07/11	
TYPE OF DISCHARGE	(DD)	
DATE OF DISCHARGE	19780630	
DISCHARGE AUTHORITY	AR 635-200 	
DISCHARGE REASON	Trial by Court-Martial, BCD	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	105.0100	
2.		
3.		
4.		
5.		
6.