RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  18 December 2003
	DOCKET NUMBER:  AR2003088840

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Yolanda Maldonado		Member	
	Mr. James E. Anderholm		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests that his bad conduct discharge (BCD) be upgraded to honorable.

2.  The applicant states that he was under the influence of drugs and alcohol and was borderline retarded with a psychologist diagnosis.  He is unable to work due to blackouts and high blood pressure.

3.  The applicant provides no documentation in support of his request.

CONSIDERATION OF EVIDENCE: 

1.  The applicant enlisted on 2 October 1973 and completed training as a tactical wire operations specialist.  He served 13 months in Korea and was promoted to the pay grade of E-4 effective 1 January 1976.

2.  The applicant reenlisted on 2 September 1976 and was issued an honorable discharge on 1 September 1976 with 2 years, 10 months, and 24 days active service.

3.  The applicant was promoted to pay grade E-5 effective 13 August 1977 and was assigned to Germany from December 1978 through December 1980.

4.  On 21 January 1983, the applicant was convicted, PURSUANT TO HIS PLEAS, by a general court-martial (GCM) for aggravated assault with a firearm and maiming.  The approved sentence included confinement for 4 ½ years, and a BCD.  On 29 March 1984 the United States Court of Military review dismissed the finding of guilty of aggravated assault.  The sentence was affirmed and the applicant was discharged with a BCD effective 16 July 1984 as a result of court-martial under the authority of Army Regulation 635-200, paragraph 3-11.

5.  The applicant's aptitude area scores at the time of enlistment show that he was well qualified for training in many Army skills with a general/technical score of 98 and an Armed Forces Qualification Test score of 59.  It is also noted that he completed the high school requirement through completion of the General Equivalency Degree program.

6.  The available medical records show that he was treated for ingrown facial and neck hairs, injured left wrist, hearing loss, a fractured nose, warts, head laceration, and dizziness. There is no record of drug or alcohol abuse or mention of mental defect.

7.  Army Regulation 635-200 provides that a BCD will only be given pursuant to an approved sentence of a general or special court-martial after appellate review and the affirmed sentence ordered duly executed.

8.  Army Regulation 15-180 provides for petitioning the Army Discharge Review Board (ADRB), using DD Form 293, for upgrade of the characterization for discharge.  The regulation specifies that the ADRB may not consider an appeal for an upgrade from an applicant discharged as a result of a GCM.

9.  Title 10 of the United States Code, section 1552 as amended does not permit any redress by the Army Board of Correction of Military Records (ABCMR) of the finality of a court-martial conviction and empowers the ABCMR to only change a discharge if clemency is determined to be appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms that the applicant’s conviction and discharge were effected in accordance with applicable law and regulations in effect at the time, and that his trial by court-martial was warranted by the gravity of the offenses with which he was charged.

2.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  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 applicant does not warrant an upgrade and he does not provide a sufficient reason for granting the relief he now requests.  It would not be appropriate to change the records to show that he was issued an honorable discharge on 16 July 1984.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__ro____  __ym____  ___ja___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned to upgrade his discharge to honorable.

		__Raymond V. O’Connor, Jr.____
		        CHAIRPERSON

INDEX

CASE ID	AR2003088840	
SUFFIX		
RECON		
DATE BOARDED	20031218	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.