MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           11 July 2002                  
	DOCKET NUMBER:   AR2002071977

	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. Stephanie Thompkins		Analyst	

  The following members, a quorum, were present:

	Mr. Ted S. Kanamine		Chairperson	
	Mr. John T. Meixell		Member	
	Mr. Harry B. Oberg 		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 general under honorable conditions.

APPLICANT STATES:  That he should be given an upgrade because he needs Veterans Administration benefits for his family and himself.  He also states that he put in 5 good years of service and 6 years of good service in the Army Reserve.  He had one bad experience that led to his BCD and 6 years have passed and he thinks the punishment has been more than enough.

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

He enlisted in the Reserve for 8 years in pay grade E-1 on 13 February 1985.  He served on active duty from 12 June 1985 to September 1986 and was honorably separated for the expiration of term of service.  He remained in the Reserve until 15 April 1990.

He enlisted in the Regular Army for 4 years, in pay grade E-2, on 29 May 1992.

He was promoted to specialist, pay grade E-4 on 3 May 1994.  He was awarded the Good Conduct Medal for the period 29 May 1992 to 28 May 1995.

On 24 April 1996, he was tried by general court-martial.  Pursuant to his guilty pleas, he was found guilty of assault consummated by a battery, aggravated assault with a deadly weapon, and communication of a threat and sentenced to reduction to pay grade E-1, confinement for a period of 10 months, forfeiture of all pay and allowances and a BCD.

The United States Army Court of Criminal Appeals affirmed his sentence on 4 December 1996.

He was discharged under the provisions of Army Regulation 635-200, as a result of court-martial, with a BCD on 5 September 1997, in pay grade E-1.  He was credited with 4 years, 3 months and 2 days net active service this period, 2 months and 25 days total prior active service, and 365 days of time lost.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-11, of this regulation, in effect at the time, provided for the separation of personnel with an approved sentence to a BCD after completion of the appellate review and after the sentence had been affirmed.

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.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge.  He has not shown error, injustice, or inequity for the relief he now requests.  

2.  The Board has noted his contentions that he needs Veterans Administration benefits for his family and himself, that he put in 5 good years of service and 6 years of good service in the Army Reserve and one bad experience led to his BCD.  However, the type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.

3.  Trial by general court-martial was warranted by the serious nature of the multiple offenses charged, the conviction is final and the sentence is commensurate with the misconduct of which the applicant was convicted.

4.  The applicant has provided no evidence or argument to show the discharge should be upgraded.  He has not convinced the Board the punishment has now been more than enough and should now be removed based on the lapse of time.

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

_JTM____  _TSK___  _HBO___   DENY APPLICATION

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

INDEX

CASE ID	AR2002071977	
SUFFIX		
RECON		
DATE BOARDED	20020711	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	A70	
2.		
3.		
4.		
5.		
6.