MEMORANDUM OF CONSIDERATION

	IN THE CASE OF

	BOARD DATE:             28 August 2003  
	DOCKET NUMBER:    AR2003088120

	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. Yvonne J. Foskey .		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Thomas Lanyi		Member	
	Mr. Harry B. Oberg		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 is unable to lift, jog, or stand for prolonged periods due to hernia surgery he received while on active duty, and is disabled as a result of this service connected medical condition.  

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

On 2 October 1990, he enlisted into the Regular Army for 4 years.  He successfully completed basic training at Fort Benning, Georgia and advanced individual training (AIT) at Fort Drum, New York.  Upon completion of AIT, he was awarded military occupation specialty (MOS) 11B (Infantryman).

The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition.  It does reveal a disciplinary history that includes convictions by both a general court-martial (GCM) and a special 
court-martial (SPCM).  A BCD was included in the sentences that resulted from both these court-martial convictions.  

On 25 July 1991, the applicant was reduced from private/E-2 (PV2) to
private/E-1 (PV1) as a result of accepting field grade nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ). 

On 20 November 1991, the applicant was found guilty of assault, for intentionally inflicting grievous bodily harm on another soldier, and of breaking restriction by a SPCM.  The resultant sentence included a forfeiture of $250.00 pay per month for three months, confinement for 14 days, and a BCD.  The convening authority approved this sentence in SPCM Order Number 3, dated 6 March 1992, published by Headquarters, 10th Mountain Division and Fort Drum, Fort Drum, New York, and directed that the sentence be executed except for the BCD.

On 24 March 1992, while still undergoing the appellate process connected to his 20 November 1991 SPCM conviction, the applicant was found guilty pursuant to his pleas of being absent without leave (AWOL) and the wrongful appropriation of a motor vehicle by a GCM.  The resultant sentence included a BCD, confinement for 19 months, and forfeiture of all pay and allowances.  

On 28 May 1992, in GCM Order Number 17, issued by Headquarters, 10th Mountain Division and Fort Drum, Fort Drum, New York, the convening authority approved only so much of the GCM sentence that provided for BCD, confinement for 18 months, and forfeiture of all pay and allowances.  

On 31 July 1992, the United States Army Court of Military Review upon consideration of the entire record of his general court-martial, including consideration of the issues specified by the appellant, 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 the sentence were affirmed.

On 3 May 1994, the SPCM Order Number 46 and GCM Order Number 125, issued by Headquarters, United States Army Armor Center and Fort Knox, 
Fort Knox, Kentucky, affirmed that all sentencing for the SPCM adjudged on 
20 November 1991 and the GCM adjudged on 24 March 1992 had been complied with and directed that the BCD should be executed.  

On 26 May 1994, the applicant was discharged accordingly.  At the time of his discharge, he had completed a total of 2 years, 5 months, and 1 day of creditable active military service, and had accrued 449 days of time lost due to AWOL and confinement.  

The applicant’s Official Military Personnel File (OMPF) contains no medical records, and there is no indication that the applicant suffered from a medically disabling condition at the time of his discharge.  

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 Board notes the applicant’s contention that he is disabled as a result of a service connected medical condition.  However, the Board finds insufficient evidence to support this claim.  Even if the applicant had received hernia surgery while on active duty, he has failed to provide any independent evidence to show that this surgery is the reason he suffers from his current medical problems.  

2.  The evidence of record confirms that the applicant’s GCM and SPCM trials were warranted by the gravity of the offenses for which he was charged.  The convictions and his ultimate discharge were effected in accordance with applicable law and regulations, and it accurately characterizes the misconduct for which he was convicted.

3.  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.  

4.  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 offenses for which he was convicted.  

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

__HBO___  __TL__  __AO___  DENY APPLICATION

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

INDEX

CASE ID	AR	
SUFFIX		
RECON		
DATE BOARDED		
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	AR 	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.