MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           29 August 2002
	DOCKET NUMBER:   AR2002074256

	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. William Blakely		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Christopher J. Prosser		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:  In effect, that his bad conduct discharge (BCD) be upgraded to an honorable discharge (HD).  

APPLICANT STATES:  In effect, that the BCD that he received as a result of a conviction by a general court-martial (GCM) should be upgraded.  He claims that his immaturity at the time contributed to his misconduct.  He also contends that since his discharge, he has been a God fearing, hard working, law abiding citizen.  Further, he claims that he has overcome hardship and adversity, and is now working on an electrical engineering degree in order to continue to be a contributing and productive citizen.  He finally requests that these factors be considered and that his discharged be upgraded.  

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

He served on active duty from 1 November 1989 to 17 December 1993.  His records confirm that he was trained in, awarded, and served in military occupational specialty (MOS) 11C (Indirect Fire Crewman).  The highest rank he attained while serving on active duty was private first class/E-3, and his record documents no acts of valor, significant achievement, or service warranting special recognition.

On 31 July 1991, the applicant was convicted by a GCM of two specifications of the wrongful distribution of marijuana on the following dates for the amounts indicated:  25 February 1991, approximately 3 grams; and 6 March 1991, approximately 3.50 grams.  The sentence adjudged by the court was forfeiture of all pay and allowances, confinement for five years, and a dishonorable discharge.

On 20 November 1991, in GCM Order Number 108, issued by Headquarters, 
3rd Infantry Division, Europe, the convening authority approved the following sentence:  forfeiture of all pay and allowances; confinement for three years; and a BCD.  All but the BCD portion of the sentence was ordered executed.  

On 22 April 1993, the United States Army Court of Military Review examined the record of trial and found it to be legally sufficient to support the findings of guilty and the sentence, and it affirmed the conviction.  

On 3 December 1993, in GCM Order Number 406, issued by the United States Disciplinary Barracks, Combined Arms Command and Fort Leavenworth,
Fort Leavenworth, Kansas, the unexecuted portion of the applicant’s sentence pertaining to the BCD was ordered executed.  On 17 December 1993, he was discharged accordingly after completing a total of 1 year, 9 months, and 19 days of creditable active military service, and accruing 852 days of lost time due to confinement.

Title 10 of the United States Code, section 1552 as amended does not permit any redress by the Army Board of Correction of Military Records (ABCMR) of the finality of a court-martial conviction and empowers the ABCMR to only change a discharge if clemency is determined to be appropriate.

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 notes the applicant’s contentions that his BCD should be upgraded based upon his lack of maturity during his period of enlistment, and on his post service conduct and achievements.  However, it also notes that the applicant was over 18 at the time of his enlistment and there is no evidence to show that he was any less mature than others of the same age who successfully served at the time.  Further, while his post service conduct is noteworthy, it alone is not sufficiently mitigating to warrant the requested relief. 

2.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the punishment imposed.  The evidence of record confirms that the applicant’s conviction and discharge were effected in accordance with applicable law and regulations in effect at the time, and that his trial by court-martial was warranted by the gravity of the offenses with which he was charged.

3.  Notwithstanding the applicant’s contentions and desires, the Board finds that the type of discharge he received appropriately characterizes the misconduct for which he was convicted, and accurately reflects his overall record of service.  Therefore, notwithstanding his post service good conduct and achievements, the Board finds that there is an insufficient basis to grant clemency in this case.   

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

__MKP__  __CJP __  _  _HBO __  DENY APPLICATION

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

INDEX

CASE ID	AR2002074256	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/08/29	
TYPE OF DISCHARGE	 BCD	
DATE OF DISCHARGE	19931217	
DISCHARGE AUTHORITY	AR635-200 paragraph 3-11 	
DISCHARGE REASON	Result of Court-martial	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.144.9301	105.01000	
2.144.9221		
3.		
4.		
5.		
6.