MEMORANDUM OF CONSIDERATION

		IN THE CASE OF:  

		BOARD DATE:          2 October 2003                    
		DOCKET NUMBER:  AR2003088186

	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. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Ms. Kathleen A. Newman 		Chairperson	
	Mr. Lester Echols 		Member	
	Mr. John T. Meixell 		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 clemency be granted in the form of a discharge upgrade.

APPLICANT STATES:  In effect, that he injured his back during his military service and has suffered severe problems due to this injury.  He contends that he needs medical treatment from the Department of the Veterans Affairs (DVA) because he does not have any insurance.   

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

The applicant enlisted on 5 February 1971 for a period of 2 years.  He successfully completed basic combat training and advanced individual training and was transferred to Germany for duty as a heavy truck driver.    

On 15 February 1972, nonjudicial punishment was imposed against the applicant for disrespectful behavior.  His punishment consisted of a reduction to pay grade E-2 (suspended for 1 month) and a forfeiture of pay.

On 16 June 1972, contrary to his pleas, the applicant was convicted by a general court-martial of committing aggravated assault upon a civilian by cutting him in the abdomen with a knife.  He was sentenced to be discharged from the service with a dishonorable discharge, to be reduced to pay grade E-1, to forfeit all pay and allowances, and to be confined at hard labor for 2 years.  On 25 August 1972, the convening authority approved only so much of the sentence as provided for a reduction to pay grade E-1, a bad conduct discharge, confinement at hard labor for 2 years and total forfeitures.  

On 25 June 1973, the United States Army Court of Military Review affirmed the findings of guilty and sentence.  The bad conduct discharge was ordered executed on 9 August 1973.

Accordingly, the applicant was discharged on 5 September 1973 pursuant to the sentence of a general court-martial.  He was issued a Bad Conduct Discharge Certificate.  He had served 1 year, 2 months and 9 days of total active service with 296 days lost due to confinement and 213 days lost subsequent to his normal expiration term of service.

The applicant was paroled on 12 September 1973 from the U.S. Disciplinary Barracks (USDB) at Fort Leavenworth, Kansas.  He was released and set at liberty on 15 June 1974.

There is no evidence in the available records which shows the applicant injured his back during his military service.  However, his service medical records do 
show that he was treated for low back pain on several occasions.  The medical evidence shows the applicant’s back x-ray was within normal limits and that he had full range of motion.  While in confinement at the USDB, the applicant underwent a routine physical examination on 16 October 1972 and his physical profile was 111111.  

Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Paragraph 3-11 of this regulation states that a soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed. 

Section 1552(f), Title 10, United States Code states that the ABCMR can only review records of court-martial and related administrative records to correct a record to accurately reflect action taken by reviewing authorities under the Uniform Code of Military Justice (UCMJ) or to take clemency action.

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.  

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.

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.  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.

2.  The Board considered the applicant’s contention that he injured his back during his military service.  However, service medical records do not indicate any medical condition incurred while entitled to receive basic pay which was so severe as to render the applicant medically unfit for retention on active duty.

3.  The Board noted the applicant’s contention that he needs his discharge upgraded to allow him entitlement to DVA benefits for medical care.  However, the Board does not grant relief solely for the purpose of obtaining medical benefits.  
   
4.  The Board reviewed the applicant’s record of service which included one nonjudicial punishment and one general court-martial conviction and determined that his quality of service did not meet the standards of acceptable conduct and performance for Army personnel.  Therefore, the Board determined that clemency in the form of an honorable discharge was not warranted in this case.

5.  The Board also determined that the seriousness of the aggravated assault offense was too serious to grant clemency in the form of a general discharge.      

6.  The applicant has failed to show through the evidence submitted with his application or the evidence of record that the actions taken in his case were in error or unjust.

7.  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

KAN____  LE_____  JTM_____  DENY APPLICATION

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

INDEX

CASE ID	AR2003088186	
SUFFIX		
RECON		
DATE BOARDED	20031002	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	19730905	
DISCHARGE AUTHORITY	AR 635-200 Paragraph 11-2	
DISCHARGE REASON	Court-martial	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.0200	
2.		
3.		
4.		
5.		
6.