RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            09 MARCH 2004                  
	DOCKET NUMBER:   AR2003092541

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Ms. Shirley L. Powell		Member	
	Ms. Barbara J. Ellis		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests that his bad conduct discharge be upgraded to honorable and that the reason for his discharge be changed.

2.  The applicant states that he is a changed man since his discharge.  He has learned his lesson.  He is married, has two children, and has been working with the merchant marine for four years.  He is a member of the Seafarers International Union in good standing and will continue to be so until he succeeds. 

3.  The applicant provides a copy of his 13 April 1993 DD Form 214 (Certificate of Release or Discharge from Active Duty), and copies of statements of support  from a family member, a friend and co-worker, and from an official of the Seafarers International Union.

CONSIDERATION OF EVIDENCE: 

1.  The applicant enlisted in the Army for four years on 11 October 1988, completed training, and in March 1989 was assigned to an engineer company in Germany. 

2.  The applicant's commanding officer recommended that the applicant be barred from reenlisting, indicating that the applicant had received nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) on            4 January 1990 for failure to follow a lawful order, and on 10 January 1990 for being drunk and disorderly.  He also indicated that the applicant had been counseled for marginal performance and was apprehended twice by the military police for alcohol related incidents.  The recommendation was approved on        7 March 1990.

3.  On 29 October 1991 the applicant was awarded the Good Conduct Medal for the period 11 October 1988 to 10 October 1991.

4.  Headquarters, VII Corps General Court-Martial Order Number 6, dated          23 March 1992, shows that the applicant was arraigned, tried, and found guilty of failure to obey a lawful order on or about 1 September 1991, willfully damaging military property on or about 2 September 1991, willfully and wrongfully damaging private property on or about 9 August 1991, assault with means and a force likely to produce grievous bodily harm on or about 9 August 1991, three charges of assault consummated by battery on or about  2 September 1991, and drunk and disorderly on or about 9 August 1991 and on or about 2 September 1991.  The applicant was sentenced to be confined for a period of 14 months, and to be discharged with a bad conduct discharge.  The sentence was adjudged on 2 December 1991.

5.  The convening authority approved the sentence, except for the part extending to a bad conduct discharge, but suspended the execution of that part of the sentenced adjudging confinement in excess of twelve months, for twelve months, unless the suspension was sooner vacated, at which time the sentence would be remitted without further action. 

6.  The record of the applicant's trial by court-martial is not available to the Board.
 
7.  Headquarters, United States Army Field Artillery Center and Fort Sill General Court-Martial Order Number 47, dated 29 May 1992, shows that the sentence imposed by court-martial which suspended the execution of the approved sentence to confinement in excess of 12 months, was vacated.

8.  On 10 September 1992 the Court of Military Review affirmed the findings of guilty and the sentence as approved by the convening authority.  

9.  Headquarters, 7th Infantry Division (Light) and Fort Ord General Court-Martial Order Number 20, dated 3 March 1993, directed that the bad conduct discharge be executed.  

10.  The applicant, then in an excess leave status, was discharged on 13 April 1993 with a bad conduct discharge.

11.  The maximum punishment authorized by the Manual for Courts-Martial for failure to obey a lawful order is a bad conduct discharge and six months confinement; for wrongfully damaging military property (of a value of $100 or less), a bad conduct discharge and one year confinement; for wrongfully damaging property other than military property (of a value more than $100), a dishonorable discharge and five years confinement; and for assault with a means likely to produce grievous bodily harm, a dishonorable discharge and three years confinement.

12.  Army Regulation 635-200 provides for the discharge of enlisted Soldiers, Paragraph 3-11 states that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.  

DISCUSSION AND CONCLUSIONS:

1.  Absent evidence to the contrary, the applicant's trial by court-martial was conducted in accordance with the law, as was his conviction of the offenses charged.  His trial by court-martial was warranted by the gravity of the offenses charged.  The applicant's discharge was effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.  

2.  The applicant's contention of his good post service conduct, as attested to in the statements of support submitted with his request, is duly noted.  Nonetheless, in view of the seriousness of the applicant's offenses, this factor does not warrant the relief requested.  To grant his request would be an injustice to those Soldiers who served honorably during their period of service.  The actions by the Army in this case were proper, and there is no doubt to be resolved in favor of the applicant.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__SAC __  __SLP __  __BJE __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

		___Samuel A. Crumpler_____
		        CHAIRPERSON

INDEX

CASE ID	AR2003092541	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040309	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.