MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           24 September 2002
	DOCKET NUMBER:   AR2002072224

	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	
	Mrs. Carolyn G. Wade		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Kenneth W. Lapin		Member	
	Mr. Donald P. Hupman, Jr.		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 he did not deserve a BCD.

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

He enlisted in the Regular Army on 21 October 1982 for a period of 3 years.  He enlisted for training in military occupational specialty (MOS) 76C, Equipment Records and Parts Specialist.  Following completion of all military training, the applicant was awarded MOS 76C and was assigned to Germany as his first permanent assignment.

The applicant served without incident until 3 September 1983 when he attempted to rob a fellow soldier outside the Post Exchange.  On 23 September 1983, court-martial charges were preferred against the applicant for attempting to steal from the person of a private first class/PFC by means of force and violence.  

On 27 October 1983, the applicant was convicted by a special court-martial of attempted robbery.  He was sentenced to a BCD, confinement at hard labor for 3 months, forfeiture of $382.00 pay per month for 3 months, and reduction to private/E-1.  On 1 December 1983, the sentence was approved and the applicant was confined to the United States Army Correctional Activity, Fort Riley, Kansas.

On 27 November 1984, the appellate review was completed, the sentence was affirmed, and the BCD was ordered executed.

On 26 December 1984, the applicant was discharged with a BCD pursuant to his sentence by special court-martial.  He was credited with 1 year, 11 months, and 20 days of active military service and 76 days of lost time.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, paragraph 3-11 provides that a soldier will be given a BCD pursuant only to an approved sentence of a general court-martial or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

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 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.
2.  The Board carefully reviewed all of the applicant’s faithful and honorable service as well as his misconduct.  The applicant's contention that the bad conduct characterization of his service was undeserved is without merit.  The applicant, in effect, was convicted of attempted robbery of a fellow soldier and received a felony conviction for that misconduct; his misconduct was not of a minor nature.  Trial by court-martial was warranted by the gravity of the offense charged.  

3.  The evidence of record clearly shows that the applicant was adjudged guilty by court-martial and that the convening authority approved the sentence.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed by the court-martial.  After a thorough review of the applicant’s record and any issues submitted, the Board found no cause for clemency.

4.  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

__aao___  __kwl___  __dph___  DENY APPLICATION

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

INDEX

CASE ID	AR2002072224	
SUFFIX		
RECON		
DATE BOARDED	20020924	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	19841226	
DISCHARGE AUTHORITY	AR 635-200, ch 3	
DISCHARGE REASON	A68.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.9405	
2.		
3.		
4.		
5.		
6.