MEMORANDUM OF CONSIDERATION

		IN THE CASE OF:  

		BOARD DATE:          13 November 2003    
		DOCKET NUMBER:  AR2003089581

	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. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Ms. Eloise C. Prendergast		Member	
	Mr. Ronald E. Blakely		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 in the form of a general discharge be granted.

APPLICANT STATES:  In effect, that he completed the ten-week program for Post Traumatic Stress Disorder (PTSD) in 1997, that he regularly attends outpatient treatment for PTSD and that he has been diagnosed with pancreatitis. In support of his application, he submits a Department of Veterans Affairs (DVA) Compensation and Pension Exam Report, dated 23 February 1998; three DVA medical records, dated 7 January 2003; a DVA medical record, dated 15 January 2003; Special Court-Martial Order Number 103, dated 24 October 1974; U.S. Army Court of Military Review Decision, dated 8 August 1974; Special Court-Martial Order Number 17, dated 7 June 1973; a copy of his DD Form 214 (Report of Transfer or Discharge); a medical record; two Certificates of Appreciation; a Certificate of Achievement; and three character reference letters.           

COUNSEL CONTENDS:  The American Legion was notified of the applicant's pending review; however, no brief was submitted. 

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

The applicant was inducted on 18 October 1966, served as a combat engineer in Vietnam and was released from active duty on 17 October 1968.  He enlisted in the Regular Army on 11 March 1971 for a period of 3 years. 

On 1 March 1973, contrary to his pleas, the applicant was convicted by a special court-martial of aggravated assault upon another soldier by cutting him on the arm, thigh, hand, and back with a knife.  He was sentenced to be discharged from the service with a bad conduct discharge, to be reduced to pay grade E-1, and to be confined at hard labor for 3 months.  On 7 June 1973, the convening authority approved the sentence.  

On 8 August 1974, the United States Army Court of Military Review affirmed the findings of guilty and sentence.  The bad conduct discharge was ordered executed on 24 October 1974.

Accordingly, the applicant was discharged on 9 April 1975 pursuant to the sentence of a special court-martial.  He was issued a Bad Conduct Discharge Certificate.  He had served 5 years, 10 months and 14 days of total active service with 76 days lost due to confinement and 688 days of excess leave.

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 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 character reference letters provided in support of the applicant.  However, good post service conduct alone is not a basis for upgrading a discharge. 

3.  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.

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

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

AAO___  ECP_____  REB_____  DENY APPLICATION

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

INDEX

CASE ID	AR2003089581	
SUFFIX		
RECON		
DATE BOARDED	20031113	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19750409	
DISCHARGE AUTHORITY	AR 635-200   	
DISCHARGE REASON	Pursuant to the sentence of a special court-martial	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.0200	
2.		
3.		
4.		
5.		
6.