MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:            27 August 2002                  
	DOCKET NUMBER:   AR2002072450

	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. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Arthur A. Omartian 		Member	
	Mr. Thomas Lanyl		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 his bad conduct discharge (BCD) be upgraded to honorable.

APPLICANT STATES: That he was not given proper representation by his lawyer and was not allowed to plead his case before a jury.  He indicates his lawyer convinced him to plead guilty because this was his last case before leaving the Army.  He indicates he served his country to the best of his ability.  He was trained and served as a soldier the way he was trained.  A doctor told him about two years ago that he had a kidney problem and now he is completely disabled and is asking for an upgrade because he has paid the price.  Further, he indicates he once read that some people ran to Canada to avoid serving the military and were given clemency.  He now needs the benefits he lost and desires consideration of his request.  He provides one letter of support.

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

On 13 July 1973, the applicant enlisted in the Army.  He completed his required training and was awarded military occupational specialty 31M (Radio Relay and Carrier Attendant).  He was advanced to pay grade E-3, effective 22 February 1974.

On 4 September 1974, while assigned to Fort Bragg, North Carolina, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice for possession of a controlled substance, marijuana.  His punishment included a forfeiture of $75 pay and extra duty for 14 days.  He appealed the punishment, which was denied.

On 2 April 1975, at Fort Bragg, he accepted NJP for wrongful use of marihuana.  His punishment was a reduction to pay grade E-1, forfeiture of $100 pay per month for 2 months and correctional custody for 30 days.  In his appeal, he stated that he thought the punishment was too severe and “the charge wasn’t proven to be sati[s]factory to his behalf”.  His appeal was denied.

On 17 March 1977, while a member of Company C, UA Armor Center and Fort Knox, Fort Knox, Kentucky, his commander preferred court-martial charges against the applicant for committing an assault upon another soldier by cutting him, in the face, with a dangerous weapon, to wit: a box opener, with a razor blade on or about 12 March 1977.

On 11 April 1977, at Fort Knox, Kentucky, he accepted NJP for being absent without leave for the period 4 to 8 April 1977.  His punishment included a forfeiture of $50.

On 25 April 1977, he entered into a plea agreement to have the excess of         15 months of confinement at hard labor (CHL) suspended.  In this plea agreement, he indicated, “I am satisfied with the defense counsel who has been detailed to defend me.”  Additionally, he indicates “This offer to plead guilty originated with me and no person or persons have made any attempt to force or coerce me into making this offer to plead guilty.”

On 18 May 1977, in consonance with his plea, the applicant was convicted by a general court-martial (GCM) of assault with a dangerous weapon (box opener, with a razor blade) by cutting another soldier in the face.  His sentence included CHL for 6 months, discharge from the service with a bad conduct discharge (BCD), forfeiture of $240.00 pay per month for six months and reduction to pay grade E-1.  The sentence was approved on 18 July 1977.

On 13 October 1977, a physical examination cleared the applicant for separation.

On 14 October 1977, the applicant was restored to duty pending completion of the appellate review.

On 14 October 1977, he departed on his requested excess leave pending completion of the appellate review.

On 28 February 1978, the Court of Military Review affirmed the findings of guilty and the sentence. 

The Court of Military Appeals denied his petition for a Grant of Review on 5 July 1978.

On 11 June 1979, he received a BCD, in pay grade E-1, based on a court-martial sentence.  His DD Form 214 (Report of Separation from Active Duty) indicates he had 2 years, 5 months and 20 days of creditable service, 159 days of lost time and 606 days of excess leave.

The statutory authority under which this Board was created (Title 10, United States Code, section 1552, as amended) precludes any action by this Board, which would disturb the finality of a court-martial conviction.  Rather it is only empowered to changed 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. 

Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 3-7 provides that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be inappropriate.

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 offense charged and the applicant’s previous records of non-judicial punishment.  Conviction and discharge were effected in accordance with applicable law and regulations, and the sentence to discharge appropriately characterized the misconduct for which the applicant was convicted.

2.  The Board concluded in this case that the applicant is not entitled to an honorable discharge, and there is no basis for clemency in this case.

3.  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.

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

_INW____  _AAO____  _TL____ DENY APPLICATION

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

INDEX

CASE ID	AR2002072450	
SUFFIX		
RECON		
DATE BOARDED	20020827	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	131	
2.		
3.		
4.		
5.		
6.