MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           4 June 2002
	DOCKET NUMBER:   AR2002069814

	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:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Ms. Regan K. Smith		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. 

APPLICANT STATES:  In effect, that his conviction by a general 
court-martial (GCM) that resulted in his separation from the Army with a BCD, be upgraded based upon his being a model citizen for 30 years.

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

On 10 April 1967, the applicant enlisted in the Regular Army for 3 years.  He was trained as a lineman and the highest rank he attained during his active duty tenure was private first class/E-3.

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: 24 August 1967, for unlawfully striking another soldier in the face with his fist; and 20 February 1968, for failure to go to his appointed place of duty.

On 12 August 1968, the applicant was convicted by a GCM of stealing $104.00 in United States Currency, the property of another soldier.  The resultant sentence included a forfeiture of all pay and allowances, a reduction to the rank and pay grade of private/E-1, confinement for 1 year, and a BCD.  On 31 August 1968, the convening authority approved the sentence and ordered all but the BCD portion to be executed.

On 29 October 1968, the US Army Board of Review examined the record of trial and found it to be legally sufficient to support the findings of guilty and the sentence and affirmed the conviction.  On 9 December 1968, the unexecuted portion of the sentence pertaining to BCD was ordered executed and on 
13 January 1968, the applicant was separated accordingly.  At the time of his discharge he had completed 1 year, 4 months, and 2 days of creditable active military service and had accrued 155 days of lost time due to 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 his BCD should be upgraded based upon his post service conduct.  However, it finds that this factor alone does 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.  

3.  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.

4.  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.

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

     JLP          AAO           RKS       DENY APPLICATION

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

INDEX

CASE ID	AR2002069814	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/06/04	
TYPE OF DISCHARGE	(BCD)	
DATE OF DISCHARGE	19690113	
DISCHARGE AUTHORITY	AR 635-200.  .  .  .  .  	
DISCHARGE REASON	GCM	
BOARD DECISION	DENY)	
REVIEW AUTHORITY		
ISSUES         1.144.9221	105.0100	
2.		
3.		
4.		
5.		
6.