MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            20 August 2002
	DOCKET NUMBER:   AR2002071877

	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 bad conduct discharge (BCD) be upgraded to honorable.

APPLICANT STATES:  That for his first offense, a BCD was too harsh.  He goes on to state that he has been a model citizen and the BCD is hampering his ability to make a living and support his family.

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

He enlisted on 5 August 1974, for a period of 3 years, training as a motor transport operator and assignment to the 11th Armored Cavalry Regiment      (11th ACR).  He completed his training at Fort Dix, New Jersey, and was transferred to the 11th ACR in Germany on 5 December 1974.  He was advanced to the pay grade of E-3 on 20 March 1975.

On 26 August 1975, nonjudicial punishment (NJP) was imposed against him for fist fighting in front of the billets, for assaulting unknown persons and for driving a military truck through four motor pool doors, causing over $1,200.00 in damage.  His punishment consisted of extra duty and restriction.

He was advanced to the pay grade of E-4 on 7 April 1976 and on 16 December 1977, he reenlisted for a period 3 years and a 1-year stabilization.

On 7 August 1978, NJP was imposed against him for driving while drunk.  His punishment consisted of a forfeiture of pay and extra duty.

He remained in Germany with the 11th ACR and was promoted to the pay grade of E-5 on 10 January 1980.

On 7 November 1980, he was convicted pursuant to his guilty pleas by a special court-martial of being absent without leave (AWOL) from 8 September to 10 September 1980, from 16 September to 17 September 1980, and from 22 September until he was apprehended on 15 October 1980.  He was sentenced to a reduction to the pay grade of E-1 and a forfeiture of pay.

He again went AWOL from 15 November to 16 November 1980.  However, the record is silent as to any punishment imposed for that offense. 

On 5 June 1981, he was convicted by a general court-martial of the wrongful possession, use, transfer and selling of heroin.  He plead guilty to all of the specifications and was sentenced to confinement at hard labor for 3 months, a forfeiture of pay and a BCD.  The findings and sentence were approved by the convening authority on 14 July 1981 and the applicant was transferred to the United States Disciplinary Barracks at Fort Leavenworth, Kansas, to serve his confinement. 
On 28 December 1981, the United States Army Court of Military Review affirmed the findings and sentence as approved by the convening authority.

Accordingly, on 21 May 1982, he was discharged with a BCD, pursuant to a duly reviewed and affirmed general court-martial conviction.  He had served 7 years, 5 months and 17 days of total active service.  His awards include the national Defense Service Medal and the Good Conduct Medal.

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 supported by the evidence of record and the Board finds that they are not sufficiently mitigating to warrant relief when compared to the seriousness of his offenses 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	AR2002071877	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/08/20	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	1982/05/21	
DISCHARGE AUTHORITY	GCM	
DISCHARGE REASON	CM CONV	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  685	144.6800/A68.00	
2.		
3.		
4.		
5.		
6.