MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           27 August 2002
	DOCKET NUMBER:   AR2002068768

	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	
	Mrs. Carolyn G. Wade		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Thomas Lanyi		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 bad conduct discharge (BCD) [shown on the applicant's DD Form 214, Certificate of Release or Discharge From Active Duty, as under other than honorable conditions] be upgraded to honorable.

APPLICANT STATES:  In effect, that he had honorable service, earning decorations and awards as well as receiving above average conduct and efficiency ratings prior to committing the offenses that resulted in his court-martial and BCD.  He believes these offenses were minor in nature and could have been handled under the provisions of Article 15, Uniform Code of Military Justice.  He also states that he was experiencing marital/family problems and these problems impaired his ability to serve.

In support of his application, the applicant submitted a statement in his own behalf, a statement from his counsel, copies of his DD Forms 214, Enlistment/Reenlistment Contracts, and Enlisted Evaluation Reports.

COUNSEL CONTENDS:  That the applicant is being represented by a Veteran Service Officer and that he would appreciate being furnished copies of any advisory opinions, staff briefs or memoranda, court-martial proceedings leading to the applicant's discharge and military investigative reports obtained or prepared for use by the Board.  Upon receipt of the above materials, he will determine if a rebuttal will be submitted.  Counsel states he is making this request under the Privacy Act, 5 U.S.C., section 552.

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

He was honorably discharged from the Regular Army on 30 August 1986 with 5 years, 7 months, and 29 days of creditable military service.  

He reenlisted in the Regular Army for a period of 3 years on 17 February 1987 and in the rank of sergeant/E-5.  He enlisted for training in military occupational specialty (MOS) 63Y, Track Vehicle Mechanic, and the Station/Command of Choice Enlistment Option – Europe.  On 24 April 1987, during advanced individual training, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for disobeying a lawful order of a noncommissioned officer.  His punishment consisted of 14 days' restriction and extra duty.  Following completion of all military training, the applicant was awarded MOS 63Y and was assigned to Germany.

On 3 August 1989, the applicant was assigned to Fort Hood, Texas.  

On 26 March 1990, the applicant accepted NJP for being absent without leave (AWOL) from his unit from 12 March to 20 March 1990.  His punishment consisted of reduction in rank from sergeant/E-5 to specialist/E-4, forfeiture of 1/2 months' pay for 1 month, and 30 days' restriction and extra duty. 
On 6 November 1990, the applicant was released from civilian confinement on a personal bond.  He was charged with unauthorized use of a motor vehicle.  

On 17 December 1990, court-martial charges were preferred against the applicant for two specifications of conspiring to commit larceny and four specifications of larceny for stealing a Clarion Equalizer, valued at about $225.00; a fish finder, valued at about $120.00; a weedeater, valued at about $55.00; and miscellaneous tools and toolboxes, valued at over $100.00.

On 8 May 1991, the applicant was convicted by a general court-martial of two specifications of conspiracy to commit larceny and three specifications of larceny (the specification dealing with larceny of the weedeater was dropped).  He was sentenced to a BCD, confinement for 15 months, forfeiture of all pay and allowances, and reduction to private/E-1.  The sentence was adjudged on 8 May 1991 and the applicant was confined to the Regional Correctional Facility, Fort Hood, Texas.

On 19 September 1991, his sentence to a BCD, confinement for 15 months, forfeiture of all pay and allowances, and reduction to private/E-1 was approved and ordered executed as adjudged, except for the BCD.  

After serving his sentence to confinement, the applicant was placed on excess leave on 7 April 1992 pending appellate review of his court-martial conviction.  On 29 September 1992, the appellate review was completed, the sentence was affirmed, and the BCD was ordered executed.

On 11 December 1992, the applicant was discharged with a BCD pursuant to his sentence by general court-martial.  He was credited with 4 years, 11 months, and 23 days of active military service and a total time in service of 10 years, 7 months, and 23 days.  He had accrued 337 days of lost time.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, paragraph 3-11 provides that a soldier will be given a BCD pursuant only to an approved sentence of a general court-martial or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

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 carefully reviewed all of the applicant’s faithful and honorable service as well as his misconduct.  The applicant's contention that his offenses constituted only minor misconduct is without merit.  The applicant, in effect, was convicted of grand larceny and received a felony conviction for that misconduct; his misconduct was not of a minor nature.  Trial by court-martial was warranted by the gravity of the offenses charged.  Additionally, the Board noted that although the applicant was sentenced to a BCD, he actually received an UOTHC discharge.  

2.  The Board accepts that the applicant may have had marital/family problems; however, there were avenues available to him to seek assistance through his chain of command, his chaplain, or the family advocacy program.  His marital problems did not excuse the offense of larceny.

3.  The evidence of record clearly shows that the applicant was adjudged guilty by court-martial and that the convening authority approved the sentence.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed by the court-martial.  After a thorough review of the applicant’s record and any issues submitted, the Board found no cause for clemency.

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

__inw___  __aao___  __tl____  DENY APPLICATION

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

INDEX

CASE ID	AR2002068768	
SUFFIX		
RECON		
DATE BOARDED	20020827	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19921211	
DISCHARGE AUTHORITY	AR 635-200, chapter 3	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.9405	
2.		
3.		
4.		
5.		
6.