MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:             15 July 2003                 
	DOCKET NUMBER:     AR2003086396

	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	
	Ms. Margaret V. Thompson		Member	
	Mr. Eric N. Anderson		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:

On 17 January 1979, the applicant entered into the Regular Army for 4 years.  He was trained and served in military occupational specialty (MOS) 19K
(Tank Crewman), and the highest rank he attained during his active duty tenure was specialist five (SP5).  

The applicant’s record reveals no acts of valor, significant achievement, or service warranting special recognition.  However it does contain a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) on 8 July 1980, for being absent without leave (AWOL).

On 16 December 1982, the applicant was convicted by a GCM of four specifications of violating Article 134 of the Uniform Code of Military Justice (UCMJ).  The offenses for which he was convicted included two specifications of wrongly possessing marijuana and two specifications of wrongly selling marijuana.  The resultant sentence included a BCD, confinement at hard labor for two years, forfeiture of all pay and allowances, reduction to the grade of 
private E-1 (PV1).  

On 24 February 1983, in GCM Order Number 3, issued by Headquarters, 
2nd Armor Division, Fort Hood, Texas, the convening authority approved only so much of the sentence that provided for a BCD, confinement for 18 months, forfeiture of all pay and allowances, and reduction to the grade of PV1.  All but the BCD portion of the sentence was ordered executed.  

On 11 August 1983, 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 7 November 1983, in GCM Order Number 741, issued by the United States Disciplinary Barracks, US Combined Arms Center and Fort Leavenworth, Fort Leavenworth, Kansas, ordered the BCD portion of the applicant’s sentence to be executed.  

On 23 November 1983, the applicant was discharged accordingly.  The separation document issued to him on the date of his discharge confirms that at that time he had completed a total of 3 years, 10 months, and 29 days of creditable active military service, and he had accrued 344 days of time lost due to AWOL and 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.  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.  

2.  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.  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.

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

__MVT__  ___FE__  ___ENA __  DENY APPLICATION

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

INDEX

CASE ID	AR2003086396	
SUFFIX		
RECON		
DATE BOARDED		
TYPE OF DISCHARGE	( BCD)	
DATE OF DISCHARGE	19831123	
DISCHARGE AUTHORITY	AR635-200 .  .  .  .  .  	
DISCHARGE REASON	As a result of CM	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 30	105.0000	
2.		
3.		
4.		
5.		
6.