MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            20 August 2002
	DOCKET NUMBER:   AR2002071037

	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. Deyon D. Battle		Analyst	

The following members, a quorum, were present:

	Ms. Melinda M. Darby		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. Curtis L. Greenway		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 dishonorable discharge be upgraded to an honorable or a general discharge.

APPLICANT STATES:  That he would like to have his discharge upgraded because he has gotten married and would like to do better for his family and himself.  He states that what happened to him while he was in the Army has made him a better person and improved his understanding of being a man.  He states that he now knows that in life, he must be held accountable for his actions. He also alleges that he did not commit the crime, but was made an example because he was in charge of the office.

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

On 2 August 1974, he enlisted in the Army in Montgomery, Alabama for 4 years in the pay grade of E-1.  He remained on active duty through a series of continuous reenlistments and was promoted to the pay grade of E-5 on 2 June 1981.

Nonjudicial punishment (NJP) was imposed against the applicant on 1 February 1990, for being absent from his unit from 22 December until 26 December 1989; for disobeying a lawful order; and for dereliction of duty.  His punishment consisted of a forfeiture of pay, restriction and extra duty.  The forfeiture and restriction were suspended.

On 9 July 1990, the applicant was notified that he was being recommended for a bar to reenlistment.  The commander cited his failure to pay just debts and the NJP that was imposed against him as the basis for his recommendation.  The commander indicated that he had a history of irresponsibility in both his personal and military life and that he had not set the example as a noncommissioned officer should.  The applicant submitted an appeal to his bar to reenlistment on 20 July 1990, however his appeal was denied.  Accordingly, on 26 September 1990, he was barred from reenlistment.

On 22 January 1992, the applicant was convicted by a general court-martial of dereliction of duty, larceny in the amount of $19,100.00 and forgery of a check in the amount of $19,100.00.  He was sentenced to a dishonorable discharge, confinement for 3½ years, reduction to the pay grade of E-1 and a forfeiture of all pay and allowances.

On 8 June 1992, the convening authority approved the sentence as adjudged and except for the part of the sentence extending to a dishonorable discharge, the sentence was executed.

On 16 September 1993, the United States Army Court of Military Review affirmed only so much of the sentence as provided for dishonorable discharge, confinement for 42 months, reduction to the pay grade of E-1 and forfeiture of all pay and allowances with the explanation that a sentence to confinement should be adjudged in full days, months or years and fractions should not be employed.

Accordingly, he was dishonorably discharged pursuant to a court-martial conviction on 7 October 1994, under the provisions of Army Regulation 635-200, chapter 3-10.  He had completed 17 years, 5 months and 20 days of total active service.

The Board’s authorizing legislation, 10 United States Code 1552, specifically paragraph (f), allows the Board, with respect to court-martial records, to correct the record to reflect actions taken by reviewing authorities or to take action on the sentence for purposes of clemency.  The Board does not have the authority to affect the finality of court-martial convictions adjudged or reviewed under the Uniformed Code of Military Justice.

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 actions by the Army in this case were proper, and there is no doubt to be resolved in favor of the applicant.

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.  The Board has noted the applicant’s contentions.  While the Board is empathetic to the applicant's personal situation, that in itself is not sufficiently mitigating to warrant an upgrade of his discharge when considering the seriousness of his offenses and his otherwise undistinguished record of service.

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

__mmd__  ___rwa__  ___clg___  DENY APPLICATION

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

INDEX

CASE ID	AR2002071037	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/08/20	
TYPE OF DISCHARGE	DD	
DATE OF DISCHARGE	19941007	
DISCHARGE AUTHORITY	AR 635-200, ch 3-10	
DISCHARGE REASON	144.7100	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  715	144.7200	
2.  723	144.7510	
3.		
4.		
5.		
6.