MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           8 October 2002
	DOCKET NUMBER:   AR2002072892

	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:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. James E. Anderholm		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 this bad conduct discharge (BCD) be upgraded so that he can obtain veterans' benefits.

APPLICANT STATES:  In effect, that there is no injustice in his discharge or his court-martial conviction and that he knows the Board cannot overturn his court-martial; however, he wants his discharge upgraded in order to take advantage of the veterans' benefits available to him under the GI Bill.  He states that for the last 5 years he has worked diligently to better himself and his life.  He states that he is certified by the Professional Association of Dive Instructors to teach underwater diving, a Medic/First Aid instructor, and he has completed a US Coast Guard approved course of instruction and will receive his Masters Captains License for 100-ton vessels.  He states that he has been preparing himself to start and run a charter diving business in Maui, Hawaii.  He believes that upgrading his discharge would not only allow him to use the GI Bill, but also would remove a scar on his honor.  He concludes by stating that he will always feel remorse for his misconduct, but he is proud of his military service and the achievements that he earned while serving in the military.

In support of his application, the applicant submitted a statement in his own behalf and extracts from his military records.

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

On 18 January 1991, the applicant enlisted in the Kansas Army National Guard (KSARNG) and as a Reserve of the Army.  On 10 December 1993, the applicant submitted a DA Form 4187 (Personnel Action) requesting enlistment in the Regular Army (RA).  On 17 January 1994, the applicant was honorably discharged from the KSARNG by reason of expiration of his term of service (ETS).

On 2 February 1994, he enlisted in the Regular Army for a period of 3 years.  He enlisted for the Montgomery GI Bill, training in Military Occupational Specialty (MOS) 11B (Infantryman) and the Station of Choice Enlistment Option - Korea.  Following completion of all military training, the applicant was awarded MOS 11B and was assigned to Korea as his first permanent duty assignment. 

On 10 February 1997, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for larceny of government property and wrongful distribution of government property.  His punishment consisted of 14 days' restriction and extra duty.

On 12 February 1997, while serving at Fort Campbell, Kentucky, the applicant was convicted by a general court-martial of wrongfully possessing a firearm and ammunition, 3 specifications of assault, wrongful discharge of a firearm and 

2 specifications of wrongfully communicating a threat.  He was sentenced to reduction in grade to private/E-1, forfeiture of all pay and allowances, confinement for 16 months, and a BCD.  On 22 May 1997, the sentence was approved and ordered executed, except for the BCD.  He was confined to the Regional Correctional Facility, Fort Knox, Kentucky.

On 15 December 1997, the applicant was notified that after serving his sentence to confinement, he would be involuntarily placed on excess leave pending appellate review of his court-martial conviction.  On 16 January 1998, the applicant was placed on excess leave.  On 25 May 1999, the appellate review was completed, the sentence was affirmed, and the BCD was ordered executed.

On 16 February 2000, the applicant was separated with a BCD.

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.  The Board commends the applicant for his successful transition to civilian life and notes the accomplishments outlined in his statement submitted with his application.  However, in review of the applicant’s entire service record, the Board found that these accomplishments did not overcome the reason for discharge and characterization of service granted.  Additionally, the Board does not grant relief solely for the purpose of enabling a person to take advantage of VA benefits.  

2.  Eligibility for veteran's benefits does not fall within the purview of this Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.

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

__jlp___  __mhm___  __jea___  DENY APPLICATION

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

INDEX

CASE ID	AR2002072892	
SUFFIX		
RECON		
DATE BOARDED	20021008	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	20000216	
DISCHARGE AUTHORITY	AR 635-200, chapter 3-11	
DISCHARGE REASON	A60.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.9500	
2.	144.0100	
3.		
4.		
5.		
6.