MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           9 July 2002
	DOCKET NUMBER:   AR2002071462

	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. JoAnn H. Langston		Chairperson	
	Mr. Thomas B. Redfern, III		Member	
	Mr. Roger W. Able		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 her bad conduct discharge (BCD) be upgraded to a general, under honorable conditions discharge (GD).

APPLICANT STATES:  In effect, that her BCD was improper because it was based on an incident that occurred during an emotionally depressing time in her life.  She states that at the time of her court-martial, she was a 24 year old unwed mother to be, and was emotionally unstable.  She claims that even though she asked for help before the incident took place, she still accepts responsibility for her behavior and realizes that such behavior and lack of self control is unacceptable for soldiers and civilians.  She states that she had no other criminal behavior before her court-martial, and is now a 33 year old wife and mother of three, with a great career.  Finally, she states that she desires to have the opportunity to serve again, and that an upgrade to her discharge be considered, in order to allow her to reenlist and to correct an error in her life.

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

On 30 October 1991, the applicant enlisted in the Regular Army for 3 years.  She was trained in and awarded military occupational specialty (MOS) 94B 
(Food Service Specialist), and the highest rank she attained during her 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 her acceptance of nonjudicial punishment (NJP) on 
24 February 1993, for failing to go her appointed place of duty. 

On 7 June 1993, the applicant was convicted by a general court-martial of violating a general regulation, damaging private property over $100.00, assaulting a noncommissioned officer (NCO), assault and battery, and wrongfully communicating a threat to an NCO.  The resultant sentence included a reduction to the rank and pay grade of private/E-1, confinement for 2 years, and a BCD.  

On 29 July 1993, the convening authority approved the sentence and ordered all but the BCD portion to be executed.  However, that portion of the confinement sentence in excess of 18 months was suspended.  The applicant was also credited with 84 days pretrial confinement toward the sentence to confinement.

General Court-Martial Order Number 62, dated 23 June 1994, issued by Headquarters, US Army Field Sill Artillery Center and Fort Sill, Fort Sill, Oklahoma, directed the BCD portion of the applicant’s sentence to be executed, based on the findings and sentence of the applicant’s court-martial having been finally affirmed.  Accordingly, on 11 July 1994, the applicant was discharged after completing 1 year and 6 months of creditable active military service and having accrued a total of 411 days of time lost 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 contention of the applicant that that her discharge was improper because it was based on incident that occurred during an emotionally depressing time in her life.  However, it finds this factor, even if true, is not sufficiently mitigating to warrant the requested relief.  

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 her trial by court-martial was warranted by the gravity of the offenses with which she was charged. 

4.  Notwithstanding the applicant’s contentions and desires, the Board finds that the type of discharge received by the applicant appropriately characterizes the misconduct for which she was convicted and accurately reflects her overall record of service.  Therefore, the Board concludes that clemency is not warranted 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

_ _JHL_ _  __TBF__  __RWA__  DENY APPLICATION

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

INDEX

CASE ID	AR2002071462	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/07/09	
TYPE OF DISCHARGE	 BCD	
DATE OF DISCHARGE	19940711	
DISCHARGE AUTHORITY	AR 635-200, Chapter 3.  .  .  .  .  	
DISCHARGE REASON	Court-Martial	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.   93.23	144.680	
2.		
3.		
4.		
5.		
6.