MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           16 May 2002                   
	DOCKET NUMBER:   AR2002070471

	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. Fred N. Eichorn 		Chairperson	
	Mr. Roger W. Able 		Member	
	Ms. Paula Mokulis 		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 clemency in the form of a general discharge be granted.

APPLICANT STATES:  That his bad conduct discharge should be upgraded because he learned his lesson, he served his time, and he accepts responsibility for his actions.  In support of his application, he submits a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty). 

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

The applicant enlisted on 10 September 1986 for a period of 3 years.  He attended One Station Unit Training at Fort Benning, Georgia, and was awarded military occupational specialty 11B (infantry).

The applicant went absent without leave (AWOL) on 31 August 1987 and returned to military control on 2 September 1987. 

He went AWOL again on 16 November 1987, was apprehended by civil authorities on 13 July 1988 and returned to military control on 24 February 1989.

On 12 April 1989, the applicant was convicted by a general court-martial of desertion from 16 November 1987 to 24 February 1989, making a false official statement with the intent to deceive and writing bad checks for a total of $2179.82. He was sentenced to be reduced to E-1, to forfeit all pay and allowances, to be confined for 4 years, and to be discharged from the service with a dishonorable discharge.  On 25 May 1989, the convening authority approved only so much of the sentence as provides for a bad conduct discharge, confinement for 30 months and reduction to E-1.

The United States Army Court of Military Review affirmed the findings of guilty and the sentence on 28 February 1990.  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 21 September 1990.  His conviction having been finally affirmed, his bad conduct discharge was ordered on 7 May 1991 to be executed.

Accordingly, the applicant was discharged with a bad conduct discharge on 
14 June 1991 under the provisions of Army Regulation 635-200, paragraph 3-11, as a result of a court-martial order.  He had served 1 year, 2 months and 4 days of total active service with 642 days lost due to AWOL and confinement.  He also had 636 days lost subsequent to his normal expiration term of service.  

Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Paragraph 3-11 of this regulation 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. 

Army Regulation 635-200, paragraph 3-7, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the soldier’s separation specifically allows such characterization.

Section 1552(f), Title 10, United States Code states that the Army Board for Correction of Military Records can only review records of court-martial and related administrative records to correct a record to accurately reflect action taken by reviewing authorities under the Uniform Code of Military Justice (UCMJ) or to take clemency action.

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 applicant’s administrative separation was accomplished in compliance with applicable regulations.  

2.  The applicant has failed to show through the evidence submitted with his application or the evidence of record that the actions taken in his case were in error or unjust.  
 
3.  The Board reviewed the applicant’s record of service which included one general court-martial conviction for desertion and determined that his military record was not satisfactory.  Therefore, the Board determined that clemency in the form of a general discharge was not warranted in this case.  

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

FNE____  RWA____  PM______  DENY APPLICATION

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

INDEX

CASE ID	AR2002070471	
SUFFIX		
RECON		
DATE BOARDED	20020516	
TYPE OF DISCHARGE	(BCD)	
DATE OF DISCHARGE	19910614	
DISCHARGE AUTHORITY	AR 635-200 Chapter 3	
DISCHARGE REASON	As a result of court-martial order	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.0200	
2.		
3.		
4.		
5.		
6.