MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           29 August 2002                   
	DOCKET NUMBER:   AR2002070153

	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. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Christopher J. Prosser		Member	
	Mr. Harry B. 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:  That his bad conduct discharge (BCD) be upgraded to a general discharge or a fully honorable discharge.

APPLICANT STATES:  That he has been a good citizen since being separated from the military; that he has no criminal record; that he volunteers to help the homeless; and that he believes he was setup.

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

That on 17 April 1984, he enlisted in the Delayed Entry Program (DEP).  On 20 April 1984, he was discharged from the DEP and he enlisted in the Regular Army for 3 years.  Following completion of all required military training, he was awarded military occupational specialty (MOS) 76W, Petroleum Supply Specialist, and on 18 October 1984, he was assigned to a unit at Fort Campbell, Kentucky.

On 22 March 1985, nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), was imposed against him for disobeying a lawful order from a commissioned officer to stop walking away and to return on 7 March 1985 and for disobeying a lawful order from a noncommissioned officer (NCO) to stay at this appointed place of duty until the NCO returned on the same date.  His punishment included forfeiture of $100.00 pay per month for 1 month and 10 days of extra duty.

On 17 May 1985, the applicant was convicted by a special court-martial for failure to repair on 3 April 1985 and being disrespectful towards, and striking, a superior commissioned officer on 28 March 1985.  He was sentenced to reduction from pay grade E-2 to pay grade E-1, forfeiture of $413.00 pay per month for 4 months, confinement at hard labor for 4 months, and to be discharged with a BCD.  

On 1 July 1985, the convening authority approved the sentence as adjudged and his case was forwarded to the United States Court of Military Review. 

On 27 August 1985, the applicant was released from confinement and he was placed on excess leave.  

On 28 February 1986, the United States Court of Military Review affirmed the findings and approved the sentence.  On 2 December 1986, the appropriate authority ordered the BCD to be duly executed. 

On 12 December 1986, the applicant was discharged in absentia under the provisions of chapter 3, Army Regulation 635-200, with a BCD as a result of his conviction by a special court-martial.  His DD Form 214 (Certificate of Release or 

Discharge from Active Duty) shows that he completed 2 years, 4 months, and 11 days of active military service and he had 102 days of lost time due to being in military confinement.

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 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 judiciary process.  In accordance with Title 10, United States Code, Section 
1552, the authority under which this Board acts, the ABCMR is empowered to change the severity of the sentence imposed in the court-martial process 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.  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.

2.  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. 

3.  There is no evidence available to indicate that the applicant was setup or that anyone, to include his chain of command, acted in an arbitrary or capricious manner.

4.  The Board commends the applicant for his accomplishments since departing the military.  However, post service accomplishments alone do not provide the Board a basis to grant clemency.  

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

__mkp___  __cjp___  __hbo___  DENY APPLICATION

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

INDEX

CASE ID	AR2002070153	
SUFFIX		
RECON		
DATE BOARDED	20020829	
TYPE OF DISCHARGE	(BCD)	
DATE OF DISCHARGE	19861212	
DISCHARGE AUTHORITY	AR635-200, Chap 3 	
DISCHARGE REASON	A68.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.6800	
2.		
3.		
4.		
5.		
6.