MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           13 May 2003                    
	DOCKET NUMBER:   AR2003083775

	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. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson 		Chairperson	
	Mr. Ted S. Kanamine		Member	
	Mr. Lawrence Foster 		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 general, under honorable conditions discharge (GD).  

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

He served in the Army National Guard (ARNG) from 22 December 1994 through 8 December 1998.  He completed his initial active duty for training (IADT) and was awarded military occupational specialty (MOS) 63B (Wheel Vehicle Mechanic).  On 9 December 1998, he enlisted in the Regular Army and entered active duty in the rank and pay grade of specialist four/E-4 (SPC/E-4).  

The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition.  It does contain a disciplinary history that includes his acceptance of summarized nonjudicial punishment (NJP) on 
19 October 1999, for disobeying the lawful order of a noncommissioned officer.  

On 25 August 2000, a general court-martial (GCM) found the applicant guilty of violating Article 121 of the Uniform Code of Military Justice (UCMJ) by stealing a pistol of a value exceeding $100.00, the property of the United States Government, on or about 11 May 2000.  The resultant sentence included a reduction to the grade of private/E-1 (PV1), confinement for seven months, and a BCD.  The GCM convening authority approved only so much of the sentence that provided for reduction to PV1, confinement for five months, and a BCD.  

On 21 January 2001, the applicant was placed on excess leave pending the outcome of the appellate process.  

On 9 May 2001, the United States Army Court of Criminal Appeals upon consideration of the entire record, including consideration of the issues specified by the applicant, held that the findings of guilty and the sentence as approved by the GCM convening authority was correct in law and fact.  Accordingly, the guilty finding and the sentence were affirmed.  

On 30 July 2001, the United States Court of Appeals for the Armed Forces denied the petition of review of the decision of the United States Army Court of Criminal Appeals submitted on the applicant’s behalf.  

On 27 June 2002, the BCD portion of the applicant’s sentence was ordered executed in GCM Order Number 130, issued by Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma.  On 27 September 2002, the applicant was discharged accordingly.  At the time of his discharge, he had completed a total of 3 years, 10 months, and 26 days of creditable active military service, had accrued 116 days of time lost due to confinement, and had been in an excess leave status for 607 days.  

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides policy for the separation of members with a dishonorable or bad conduct discharge pursuant to an approved sentence of a general or special court-martial.  It states that discharge would be accomplished only after the completion of the appellate process, and affirmation of the 
court-martial findings and sentence. 

Title 10 of the United States Code, section 1552 as amended does not permit any redress by this Board of the finality of a court-martial conviction and empowers the Board 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 evidence of record confirms that the applicant’s trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.

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.  

3.  The Board carefully considered the applicant’s entire record of service and found it was not sufficiently meritorious to warrant clemency given the seriousness of the offense for which he was convicted.  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

___TK__  ___LF___  __MP____  DENY APPLICATION

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

INDEX

CASE ID	AR2003083775	
SUFFIX		
RECON		
DATE BOARDED	2003/05/13	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	2002/09/27	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	GCM 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  30	105.0000	
2.		
3.		
4.		
5.		
6.