MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            17 October 2002
	DOCKET NUMBER:   AR2002073803

	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. Joann H. Langston		Chairperson	
	Ms. Margaret V. Thompson		Member	
	Mr. Richard T. Dunbar		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 a discharge that will qualify for veterans benefits.

APPLICANT STATES:  The applicant offers no argument or evidence to support his request.

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

He enlisted with a moral waiver in Portland, Oregon, on 3 April 1990, for a period of 4 years, training as a tank turret repairer, and a cash enlistment bonus.  His moral waiver was for three alcohol-related driving offenses.

He successfully completed his training and was transferred to Germany on 16 November 1990.  He served briefly in Southwest Asia (SWA) in a temporary duty status with his unit during Operation Desert Storm/Shield and was advanced to the pay grade of E-3 on 1 March 1991.

On 22 August 1991, while stationed in Germany, charges were preferred against the applicant for wrongfully operating a motor vehicle without a valid driver’s license, for operating a motor vehicle while drunk, for the wrongful use of marijuana, for stealing a motor vehicle belonging to another soldier and for fleeing the scene of an accident.

On 3 December 1991, after consulting with counsel, the applicant submitted a Request for Discharge for the Good of the Service under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  In his request he indicated that he was making the request of his own free will, without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted that he was guilty of the charges against him or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  The chain of command indicated that the applicant was a substandard soldier and recommended that his request be disapproved.  The general court-martial convening authority disapproved his request on 19 December 1991.

On 31 December 1991, the applicant submitted an offer to plead guilty to the charges of driving without a valid license, drunken driving, wrongful appropriation of a motor vehicle, and fleeing the scene of an accident.  He pled not guilty to the charge of wrongful use of marijuana.  In return for his pleas, he requested that he not receive a sentence to confinement in excess of 3 months.  The convening authority accepted his offer on 15 January 1992.

The applicant was convicted by a special court-martial on 22 January 1992 of violation of a lawful general regulation (driving without a license), of drunken driving, of wrongful appropriation of a motor vehicle and fleeing the scene of an accident.  He was sentenced to a BCD, confinement for 3 months, a forfeiture of pay, and reduction to the pay grade of E-1.

On 24 July 1992, the United States Army Court of Military Review affirmed the findings and sentence as approved by the court-martial convening authority.

On 2 March 1993, he was discharged with a BCD, pursuant to a duly reviewed and affirmed special court-martial conviction.  He had served 2 years and 8 months of total active service and had 89 days of lost time due to confinement. His awards included the Army Commendation Medal, the National Defense Service Medal, the Army Service Ribbon, the Overseas Service Ribbon, the SWA Service Medal and the Kuwait Liberation 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 Board finds no basis in the evidence of record that is sufficiently mitigating to warrant relief when compared to the seriousness of his offenses and his overall 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

__mvt___  ____jhl__  __rtd____  DENY APPLICATION

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

INDEX

CASE ID	AR2002073803	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/10/17	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	1993/03/02	
DISCHARGE AUTHORITY	SPCM	
DISCHARGE REASON	SPCM	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  685	144.6800/A68.00	
2.		
3.		
4.		
5.		
6.