MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            8 May 2003                  
	DOCKET NUMBER:   AR2003086155

	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	
	Ms. Joyce A. Hall 		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler 		Chairperson	
	Mr. Mark D. Manning 		Member	
	Mr. Robert Duecaster 		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:  That his bad conduct discharge be upgraded to honorable.

APPLICANT STATES:  He makes no additional comments.  He provides no supporting evidence.

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

He enlisted in the Regular Army on 13 November 1992 for a period of 6 years.
He completed the required training and was awarded military occupational specialty 25P10 (Audio Document System Specialist).  The highest pay grade he achieved was pay grade E-4.

On 2 November 1994, the applicant was convicted pursuant to his plea by a general court-martial of assault upon a female E-4 with intent to commit rape on or about 7 May 1994.  His adjudged sentence was reduction to E-1, confinement for 24 months, and a bad conduct discharge in accordance with the terms of his pretrial agreement.  

On 28 November 1994, the applicant submitted a request to be placed on voluntary excess leave without pay and allowances pending action by the 
court-martial convening authority and review by the Army Court of Military Review.  On 15 December 1994, the applicant’s request for voluntary excess leave was approved by the convening authority.  

On 28 March 1995, the U. S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence.  The record does not indicate that the applicant petitioned the United States Court of Military Appeals for a grant of review. 

On 16 January 1996, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 3, as a result of a court-martial.  He had completed 3 years, 2 months, and 4 days of active military service.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, Section IV, establishes policy and procedures for separating members with a dishonorable or bad conduct discharge; provides that a soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial; and that the appellate review must be completed and the affirmed sentence ordered duly executed.

Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.
The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that 
any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

Army Regulation 635-200, paragraph 3-7, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the soldier's separation specifically allows such characterization.

Title 10, United States Code, section 1552, as amended, precludes any action by this Board which would disturb the finality or a court-martial conviction.

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 considered the applicant's request to upgrade his bad conduct discharge to an honorable discharge.

2.  The Board reviewed the applicant’s service record, which included his Record of Trial.  The Board also noted that the applicant presented no evidence of error or injustice.

3.  Trial by court-martial was warranted by the gravity of the offense 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.

4.  The applicant has submitted neither probative evidence nor convincing argument in support of the request.

5.  The applicant has failed to provide any basis for the Board to grant clemency in his case.

6.  Based on the applicant’s court-martial conviction, the Board determined that the applicant did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant did not meet the criteria for an honorable discharge.  The Board also determined that the applicant’s service was not satisfactory; therefore, he did not meet the criteria for a general discharge.

7.  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.

8.  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

__MDM _  __ SAC__  __RLD __  DENY APPLICATION

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

INDEX

CASE ID	AR2003086155	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20030506	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	Mr. Carl W. S. Chun	
ISSUES         1.		
2.		
3.		
4.		
5.		
6.