MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            17 June 2003                           
	DOCKET NUMBER:    AR2003085574

	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:

	Mr. Fred N. Eichorn. 		Chairperson	
	Mr. Hubert O. Fry		Member	
	Ms. Marla J. Troup		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 he is grateful that there is a process that gives soldiers the opportunity to upgrade their discharges.  He indicates that he is providing some paperwork that provides the details surrounding his discharge. He also states that he is providing character references, reports on his post service accomplishments, and a police report to verify his post service good conduct.  He claims that his outlook on life has changed and that he is a productive and good member of his community and church.  He is proud of the fact that he was able to get and keep a job, and that he has become a home owner.  He also states that he has continued his education and is now pursuing a degree in athletic training.  He states he hopes and prays that his case will be reviewed and with a kindness of heart, and that his discharge will be upgraded.  

COUNSEL CONTENDS:  In effect, reiterates the contentions and desires of the applicant for an upgrade of his discharge, and requests a fair and impartial assessment of the applicant’s request for clemency. 

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

On 26 May 1993, he enlisted in the Regular Army for 3 years.  He was trained and served in military occupational specialty (MOS) 11M (Fighting Vehicle Infantryman), and the highest rank he attained during his active duty tenure was specialist/E-4 (SPC/E-4).  

Upon completion of his training, the applicant was assigned to Fort Knox, Kentucky.  He arrived there on 21 September 1993, and served there until his separation on 15 May 1998.  His record reveals no acts of valor, significant achievement, or service warranting special recognition.

On 19 July 1996, the applicant was convicted pursuant to his pleas of conspiring to commit larceny of $828.44, committing larceny of $828.44, and forgery.  The resultant sentence included a dishonorable discharge (DD), confinement for six months, forfeiture of all pay and allowances, and reduction to private/E-1.  

General Court-Martial Order Number 108, dated 1 November 1996, issued by Headquarters, US Army Armor Center and Fort Knox, Fort Knox, Kentucky, confirms that the convening authority approved only so much of the sentence as provided for a Bad-Conduct Discharge (BCD), forfeiture of all pay and allowances, reduction to the grade E-1; and ordered that all but the BCD portion of the sentence be executed. 

On 26 June 1997, the United States Army Court of Criminal Appeals examined the record of trial and the findings of guilty were affirmed.  The court affirmed only so much of the sentence as provided for a BCD, forfeiture of $577.00 pay per month until the discharge was executed, and reduction to private/E-1.

General Court-Martial Order Number 43, dated 20 February 1998, issued by Headquarters, US Army Armor Center and Fort Knox, Fort Knox, Kentucky, ordered the unexecuted portion of the sentence pertaining to the applicant’s BCD executed.  On 15 May 1998, the applicant was discharged accordingly.  At the time of his discharge, he had completed 4 years, 11 months, and 20 days of creditable active military service.

The letters of support submitted by the applicant attest to his post service achievements and conduct.

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 it 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 and his counsel’s contention that his BCD should be upgraded based upon his post service conduct.  However, it finds that this factor alone does not provide a sufficiently mitigating basis to upgrade his discharge at this time.  

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 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.

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

5.  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.

6.  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

__FE__  __HOF___  __MT__  DENY APPLICATION

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

INDEX

CASE ID	AR2003085574	
SUFFIX		
RECON		
DATE BOARDED		
TYPE OF DISCHARGE	 BCD	
DATE OF DISCHARGE	19980515	
DISCHARGE AUTHORITY	AR635-200, Chapter 3.  .  .  .  .  	
DISCHARGE REASON	 Court Martial	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 31	105.0100	
2. 811	144.9221	
3.		
4.		
5.		
6.