MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           18 July 2002       
	DOCKET NUMBER:   AR2002069004

	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. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor		Chairperson	
	Mr. John P. Infante		Member	
	Mr. Stanley Kelley		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 trial by general court-martial be determined a mistrial.

APPLICANT STATES:  In effect, that the general court-martial was in error because there were no peers of his race on the jury, that the only black officer left the jury and that he pled not guilty.  He also contends that he was reinstated back in the Armed Forces after completing restoration in Fort Leavenworth Disciplinary Barracks and that he was unjustly discharged after being under the influence of alcohol without signing any agreement or order.
 
EVIDENCE OF RECORD:  The applicant's military records show:

The applicant enlisted on 6 September 1978 for a period of 4 years.  He successfully completed One Station Unit Training at Fort Gordon, Georgia, and was transferred to Germany for duty as a wire systems installer/operator.  

On 14 November 1979, nonjudicial punishment was imposed against the applicant for possessing a switchblade, disorderly conduct and assault and battery.  He was reduced to the rank of Private (E-1), forfeited $100 for one month, and received 10 days extra duty.

On 13 February 1980, nonjudicial punishment was imposed for larceny.  He forfeited $100 for one month, and was given 14 days extra duty and restriction.

On 7 January 1981, while in Germany, the applicant was convicted by a general court-martial of robbery and nine specifications of making worthless checks and thereafter dishonorably fail to maintain sufficient funds.  He was sentenced to forfeit $200 pay per month for 6 months, to be confined at hard labor for 
6 months, and to be discharged from the service with a bad conduct discharge.  On 27 March 1981, the convening authority approved the sentence.

The United States Army Court of Military Review affirmed the findings of guilty and the sentence on 26 February 1982.  The applicant’s petition for grant of review of the decision of the United States Army Court of Military Review was denied by the United States Army Court of Military Appeals on 2 June 1982.  

Accordingly, the applicant was discharged with a bad conduct discharge on 
12 July 1982 under the provisions of Army Regulation 635-200, chapter 11, as a result of court-martial.  He had served 3 years, 5 months and 15 days of total active service with 142 days of lost time due to confinement and 298 days of excess leave.

Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 11 of this regulation, in effect at the time, states 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.

Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, United States Code, section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records is not empowered to set aside a conviction.  Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.

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 considered the applicant’s request that his trial by general court-martial be determined a mistrial.  However, by law, the Army Board for Correction of Military Records is not empowered to set aside a court-martial conviction.     

2.  The Board considered the applicant’s contention that the general court-martial was in error because there were no peers of his race on the jury.  However, there is no evidence of record available to the Board, and the applicant has provided no evidence, to support this contention. 

3.  The applicant’s contention that he was unjustly discharged after being under the influence of alcohol without signing any agreement or order is not supported by the evidence of record.  Evidence of record shows the applicant was discharged as a result of a general court-martial.

4.  The applicant has failed to show that the general court-martial proceedings were not conducted in accordance with law and regulations applicable at the time or that he was denied due process.  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.

5.  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.

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

RVO____  JPI_____  SK______  DENY APPLICATION

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

INDEX

CASE ID	AR2002069004	
SUFFIX		
RECON		
DATE BOARDED	20020718	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	19820712	
DISCHARGE AUTHORITY	 635-200 Chapter 11	
DISCHARGE REASON	As a result of court-martial	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	123.0400	
2.		
3.		
4.		
5.		
6.