MEMORANDUM OF CONSIDERATION

	IN THE CASE OF

	BOARD DATE:             28 August 2003    
	DOCKET NUMBER:    AR2003090446

	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. Yvonne J. Foskey.		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Thomas Lanyi		Member	
	Mr. Harry B. Oberg		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 general, under honorable conditions discharge (GD).  

APPLICANT STATES:  In effect, that he has been living with the bad discharge for more than ten years, and at this time would like his rights and any other benefits to which he is entitled restored.  He claims that he had reconstructive knee surgery in the Army, and is desperately in need of veteran’s medical care for this condition.  He concludes that since his discharge, he has been a model citizen.  

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

On 20 November 1991, he enlisted in the Regular Army for 4 years.  He successfully completed basic training at Fort Leonard Wood, Missouri and advanced individual training (AIT) at Aberdeen Proving Ground, Maryland.  Upon completion of AIT, he was awarded military occupation specialty
(MOS) 63G (Fuel and Electrical Systems Repairer).

 The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition.  However, it does reveal a disciplinary history that includes the general court-martial (GCM) conviction that led to his BCD.

On 19 July 1993, the applicant was found guilty pursuant to his pleas of the wrongful distribution of 3.4 grams of cocaine by a GCM.    His sentence included a reduction to private/E-1, confinement for nine months, and a BCD.  The sentence was approved by the convening authority in GCM Orders Number 11, dated 22 September 1993, which was published by Headquarters, Fort Polk, Fort Polk, Louisiana.  

On 23 March 1994, the United States Army Court of Military Review upon consideration of the entire record, held that the findings of guilty and the sentence as approved by the GCM convening authority was correct in law and fact.  Accordingly, the guilty finding and the sentence were affirmed.

On 15 August 1994, GCM Order Number 94, issued by the Headquarters, United States Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma, directed that the BCD portion of the applicant’s sentence be executed based on the guilty findings and sentence having been finally affirmed.  On 9 September 1994, the applicant was discharged accordingly.

The DD Form 214 issued to the applicant on the date of his separation shows that he received a BCD, under the provisions of section IV, Chapter 3, Army Regulation 635-200, by reason of court-martial.  It also shows that at the time of his separation, he held the rank of private/E-1, and he had completed 2 years, 
4 months, and 29 days of creditable active duty service.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, Section IV, establishes policy and procedures for separating members with a dishonorable or bad conduct discharge; and provides that a soldier will be given one of these punitive discharges pursuant only to an approved sentence of a general or special court-martial; and that the appellate review must be completed and affirmed sentence ordered duly executed.

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

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  The evidence of record confirms that the applicant’s trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.

2.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  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 Board carefully considered the issues submitted by the applicant in support of his request, and it finds these factors are not sufficiently mitigating to warrant the requested relief.  It also considered the applicant’s entire record of service, and concluded that it was not sufficiently meritorious to warrant clemency.

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

__HBO___  __TL__  __AO__       DENY APPLICATION

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

INDEX

CASE ID	AR	
SUFFIX		
RECON		
DATE BOARDED		
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	AR	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.