MEMORANDUM OF CONSIDERATION

		IN THE CASE OF:      

		BOARD DATE:           23 September 2003
		DOCKET NUMBER:  AR2003088282

	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. Deyon D. Battle		Analyst	

The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Patrick H. McGann		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 (BCD) be upgraded to an honorable discharge.

APPLICANT STATES:  That he enlisted in the Army for 3 years and that he completed 3 years, 6 months and 14 days of total active service.  He also states that he served his overseas tour of duty and that he had a good time.  He states that he would have been discharged in January 1984; however, he got into trouble in December 1983.  He concludes by stating that he was so close to finishing his tour of duty, that it was unfair to give him a BCD.  

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

On 20 January 1981, he enlisted in the Army for 3 years in the pay grade of E-1. He successfully completed his training as a material storage and holding specialist.  He was promoted to the pay grade of E-2 on 20 July 1981 and to the pay grade of E-3 on 1 November 1981.

Nonjudicial punishment (NJP) was imposed against the applicant on 11 November 1982, for wrongfully having in his possession one or more grams of marijuana in the hashish form and for wrongfully having in his possession a prohibited item, a smoking device.  His punishment consisted of a reduction to the pay grade of E-2 and a forfeiture of pay in the amount of $321.00 per month for 2 months.

On 27 April 1983, NJP was imposed against him for willfully disobeying a lawful order given by his senior noncommissioned officer to report to him on 20 April, 21 April and 22 April 1983.  His punishment consisted a reduction to the pay grade of E-1 (suspended until 27 July 1983) and extra duty for 14 days.

On 6 December 1983, the applicant was convicted by a special court-martial of nine specifications of wrongfully and unlawfully uttering to the Army Air Force Exchange Services checks for the purpose of procuring things of value and thereafter, dishonorably failing to maintain sufficient funds.  He was sentenced to confinement at hard labor for 45 days, a reduction to the pay grade of E-1, a forfeiture of pay in the amount of $382.00 per month for 2 months and a BCD.

The convening authority approved the sentence as adjudged and on 12 July 1984, the United States Army Court of Military Review affirmed the findings and sentence as approved by the convening authority.

Accordingly, on 13 September 1984, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 3, as a result of a duly reviewed and affirmed special court-martial conviction.  He had completed 3 years, 6 months and 14 days of total active service and he was furnished a BCD.

There is no evidence of record that shows that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, paragraph 3-11 provides that a soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence duly executed.

Title 10, United Stated Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that the Army Board for Correction of Military Records is not empowered to set aside a conviction.  Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy, or instance of leniency, to modify the severity of the punishment imposed.

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.  Trial by court-martial was warranted by the gravity of the offenses 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.

2.  The type of discharge directed and the reasons therefore appear to be appropriate considering the facts of the case.

3.  The Board has noted the applicant’s contentions.  However, they are not sufficiently mitigating to warrant the relief requested when compared to the seriousness of his offenses.  He had NJP imposed for possession of marijuana and for disobeying orders.  He was convicted by a special court-martial of nine specifications of failing to maintain sufficient funds to cover his checks.  Considering his numerous acts of indiscipline it does not appear that his BCD was unfair.

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

___jlp ___  __ao____  ___pm __  DENY APPLICATION

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

INDEX

CASE ID	AR2003088282	
SUFFIX		
RECON		
DATE BOARDED	2003/09/23	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	1984/09/13	
DISCHARGE AUTHORITY	AR 635-200, CH 3	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  675	144.6800/BCD	
2.  678	144.6803/SERIOUS OFFENSE	
3.		
4.		
5.		
6.