MEMORANDUM OF CONSIDERATION

		IN THE CASE OF:      

		BOARD DATE:           21 October 2003
		DOCKET NUMBER:  AR2003088587

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Melvin H. Meyer		Chairperson	
	Mr. William D. Powers		Member	
	Mr. Frank C. Jones		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 more favorable discharge.

APPLICANT STATES:  In effect, that he believes that given his marital problems at the time, his punishment by court-martial and discharge were unjust.  He goes on to state that he desires to join the National Guard and needs a more favorable characterization of his service.

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

He enlisted on 27 March 1995, for a period of 3 years and training as an infantryman.  He successfully completed his training at Fort Benning, Georgia and was transferred to Fort Drum, New York.

On 31 October 1996, charges were preferred against the applicant for being absent without leave (AWOL) from 13 September to 15 September 1996, for disobeying a lawful order from a superior commissioned officer, for stealing a lunch meal from the dining facility, for using another soldier's meal card with intent to defraud, and for breaking restriction.

The applicant again went AWOL on 22 November 1996 and remained absent until he was apprehended by civil authorities in Watertown, New York, on 23 December 1996.  He was returned to military control and charges were preferred against him. 

On 14 May 1997, he was convicted by a general court-martial of disobeying a lawful order from a superior commissioned officer, being AWOL during the period of 21 November to 23 December 1996, wrongful possession of marijuana on the date he was apprehended, unlawfully striking his wife in the face, breaking restriction, and assaulting his wife by pointing a firearm at her.  He was sentenced to confinement for 11 months, forfeiture of all pay and allowances and a BCD.

On 30 March 1999, the United States Army Court of Criminal Appeals affirmed the findings and sentence of the GCM convening authority.

Accordingly, he was discharged on 22 August 2000, pursuant to a duly reviewed and affirmed court-martial conviction.  He had served 2 years, 5 months and 7 days of total active service and had 1069 days of lost time due to AWOL and confinement.

Title 10, United States Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that the Board 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 moderate 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 available facts of the case.

3.  The applicant’s contentions have been noted by the Board.  However, they are not sufficiently mitigating to warrant relief when compared to the seriousness of his offenses and his overall undistinguished record of service.

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

___fcj___  ___wdp__  __mm___  DENY APPLICATION

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

INDEX

CASE ID	AR2003088587	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2003/10/21	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	2000/08/22	
DISCHARGE AUTHORITY	GCM	
DISCHARGE REASON	GCM	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  675	144.6800/A68.00	
2.		
3.		
4.		
5.		
6.