MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            20 August 2002
	DOCKET NUMBER:   AR2002071876

	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. Jessie B. Strickland		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 (DD) be upgraded to a more favorable discharge.

APPLICANT STATES:  That his discharge should be upgraded because it has been over 19 years since he was discharged from the Army.

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

He enlisted on 31 May 1978, for a period of 3 years, assignment to Europe and training as an air defense crewman.  He completed his training at Fort Bliss, Texas, and was transferred to Germany on 3 November 1978.  He was advanced to the pay grade of E-4 on 1 August 1979.

On 17 March 1980, he received a letter of commendation for being selected Brigade Soldier of the Quarter.

On 18 June 1980, nonjudicial punishment (NJP) was imposed against him for disobeying a lawful order from a noncommissioned officer.  His punishment consisted of a reduction to the pay grade of E-3 (suspended for 3 months), a forfeiture of pay, extra duty and restriction.  The suspension was vacated on 21 August 1980.

He was again advanced to the pay grade of E-4 on 1 December 1980 and on 23 April 1981, he reenlisted for a period of 3 years and training as a motor transport operator.  He departed Germany on 28 May 1981, attended and completed service school training as a motor transport operator and was assigned to Fort Stewart, Georgia, for duty as a vehicle driver.

On 7 December 1981, NJP was imposed against him for communicating a threat to do bodily harm to another soldier and wrongful use of provoking and reproachful words.  His punishment consisted of a reduction to the pay grade of E-3 (suspended for 6 months), a forfeiture of pay (suspended for 6 months), extra duty and restriction.  On 8 February 1982, the suspensions were vacated and the punishments ordered executed.

On 11 February 1982, NJP was imposed for being absent without leave (AWOL) from 2 February through 3 February 1982.  His punishment consisted of extra duty and restriction for 7 days.

He was transferred back to Germany on 12 September 1982 and on 30 June 1983, he was convicted by a general court-martial of attempting to murder a sergeant by repeatedly stabbing him with a knife.  He was sentenced to confinement at hard labor for 10 years, a reduction to the pay grade of E-1, forfeiture of all pay and allowances and a DD.  He was transferred to Fort Leavenworth, Kansas, to serve his confinement.

On 30 July 1984, the United States Army Court of Military Review affirmed the findings and sentence as approved by the general court-martial convening authority.

The applicant appealed his case to the United States Court of Military Appeals and his petition for a grant of review was denied on 11 December 1984.

On 4 December 1984, he was dishonorably discharged pursuant to a duly reviewed and affirmed general court-martial conviction.  He had served 5 years and 27 days of total active service. 

Title 10, United States Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that the Board is not empowered to set aside a conviction.  Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then 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.  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.

2.  The type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case.

3.  The applicant’s contentions have been noted by the Board.  However, they are not sufficiently mitigating to warrant relief when compared to the seriousness of his offense and his overall 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	AR2002071876	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/08/20	
TYPE OF DISCHARGE	DD	
DATE OF DISCHARGE	1985/02/04	
DISCHARGE AUTHORITY	GCM	
DISCHARGE REASON	CM CONV	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  685	144.6800/A68.00	
2.		
3.		
4.		
5.		
6.