MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            15 April 2003  
	DOCKET NUMBER:   AR2003086815

	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. Joann H. Langston		Chairperson	
	Mr. Richard T. Dunbar		Member	
	Ms. Yolanda Maldonado		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).  

APPLICANT STATES:  In effect, that he needs to upgrade his discharge in order to have the opportunity to gain good career employment and voting rights.  He also claims that an upgrade would also allow him to better care for his family, to serve as mentor to community children in need of help, and to be a contributing member of society.  He finally comments that he has not been involved in any criminal activity since his discharge.  

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

He entered the Regular Army on 4 August 1989, and served on active duty until being separated with a BCD on 30 September 1994.  His record further shows that the highest rank he attained while serving on active duty was specialist/E-4, and that he earned the following awards during his active duty tenure:  National Defense Service Medal; Army Achievement Medal (2); Army Service Ribbon; and Overseas Service Ribbon.  There are no other acts of valor, significant achievement, or service warranting special recognition documented in his record. 

The applicant’s record does contain a disciplinary history that includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 13 December 1991, which resulted in his reduction to private first class/E-3; and the general court-martial (GCM) conviction that resulted in his discharge.  

On 28 June 1993, a GCM convicted the applicant of violating Articles 95, 112a, and 86 of the UCMJ.  The first guilty finding was for resisting apprehension on 
or about 22 October 1992.  The second was for the wrongful possession of 5.85 grams of cocaine, with intent to distribute, on or about 22 October 1992; and the third guilty finding was for being absent without leave (AWOL) from on or about 
2 December 1992 to on or about 1 March 1993.  The resultant sentence included a BCD, 45 months confinement, forfeiture of $500.00 per month for 45 months, and reduction to private/E-1.  On 27 August 1993, the GCM convening authority approved the sentence and directed all but the portion pertaining to the BCD to be executed.  

On 19 November 1993, the United States Army Court of Military Review reviewed the applicant’s case, and it held that the findings of guilty and the sentence as approved by the convening authority were correct in law and fact.  Accordingly, the guilty findings and sentence were affirmed by the court.  

On 6 May 1994, the United States Court of Military Appeals considered and denied the applicant’s petition for a grant of review of the decision of the United States Army Court of Military Review.
On 30 September 1994, the applicant was discharged.  The separation document (DD Form 214) issued to him at the time shows that he received a BCD pursuant to a GCM conviction.  It also confirms that at the time of his discharge, he had completed a total of 3 years, 3 months, and 27 days of creditable active military service, and he accrued a total of 666 days of time lost, 243 days prior to his normal expiration of term of service (ETS) and 423 days subsequent to his normal ETS.  

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 establishes the 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 stated 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 his post service conduct.  However, given the seriousness of the offenses for which he was convicted, the Board finds that these factors are not sufficiently meritorious or mitigating to warrant clemency in this case. 

4.  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

__rtd____  ___jhl___  __ym ___  DENY APPLICATION

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

INDEX

CASE ID	AR2003086815	
SUFFIX		
RECON		
DATE BOARDED	2003/04/15	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	1994/09/30	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	GCM	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 189		
2.		
3.		
4.		
5.		
6.