MEMORANDUM OF CONSIDERATION

		IN THE CASE OF:      

		BOARD DATE:           13 November 2003
		DOCKET NUMBER:  AR2003090122

	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. 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:  That his bad conduct discharge (BCD) be upgraded.

APPLICANT STATES:  In effect, that his discharge should be upgraded so that he can qualify to receive medical benefits.  He also states that he entered into a pre-trial agreement with the understanding that the knife would not be brought into evidence because it came from one of the victims.  One of his lawyers started to inquire about the knife but another lawyer stopped him.

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

He enlisted in Little Rock, Arkansas, on 12 October 1982, for a period of 3 years, training as an engineer track vehicle crewman and assignment to Europe.  He subsequently waived that portion of his contract regarding assignment to Europe. He completed his training and was transferred to Fort Hood, Texas, where he was advanced to the pay grade of E-4 on 1 September 1984.

On 11 July 1985, he reenlisted for a period of 5 years, assignment to Europe and a Selective Reenlistment Bonus.  He was transferred to Germany on 7 January 1986 and was assigned to an engineer company. 

On 26 November 1986, he was convicted, pursuant to his pleas of guilty, by a general court-martial, of the wrongful possession of a switchblade knife with a blade in excess of three inches long, committing assault by cutting another soldier in the stomach and forearm, and for assault on another individual by inflicting grievous bodily harm in the form of a knife wound to the stomach.  He was sentenced to confinement for a period of 1 year, reduction to the pay grade of E-1 and a BCD.

He was transferred to the Correctional Activity at Fort Riley, Kansas, to serve his confinement, where he remained until he was placed on involuntary excess leave while awaiting his appellate review.  At the time he was granted excess leave, he was informed of his rights and of the procedures to petition the United States Court of Military Appeals within 60 days after receipt of the Army Court of Military Review (ACMR) decision.

Meanwhile, on 24 March 1987, the ACMR affirmed the findings and sentence approved by the convening authority.

On 21 October 1987, he was discharged with a BCD, pursuant to a duly reviewed and affirmed court-martial conviction.  He had served 4 years, 1 month and 21 days of total active service and had 288 days of lost time due to imprisonment.

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.

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

__reb ___  ___ecp__  __ao____  DENY APPLICATION

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

INDEX

CASE ID	AR2003090122	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2003/11/13	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	1987/10/21	
DISCHARGE AUTHORITY	AR 635-200/ch3	
DISCHARGE REASON	BCD	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  675	144.6800/a68.00	
2.		
3.		
4.		
5.		
6.