MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            22 July 2003
	DOCKET NUMBER:   AR2003091087

	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. Deyon D. Battle		Analyst	

The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Thomas D. Howard		Member	
	Mr. Thomas Lanyi		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 to a general discharge.

APPLICANT STATES:  That the night of the incident he was intoxicated and did not handle the situation in a professional manner.  He states that a homosexual approached him and tried to push himself upon him.  He states that he began to walk away from him when the individual grabbed him and before he knew what happened, he had hurt him really bad.  He states that he got scared and left him laying there on the ground and 2 days later he was arrested for the attack.  He states that he was advised by his lawyer to plead guilty to the charge of sodomy as well as aggravated assault, as his lawyer had made a deal with the government.  He concludes by stating that he does have an alcohol problem which he is currently getting help for; however, he never meant to hurt that person nor does he want to ever hurt anyone else.

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

On 2 January 1992, he enlisted in the Army at Fort Jackson, South Carolina, for 4 years in the pay grade of E-2.  He successfully completed his training as a wheel vehicle repairer.  On 10 June 1992, he was transferred to Hawaii.

He was promoted to the pay grade of E-3 on 1 November 1992 and to the pay grade of E-4 on 1 February 1994.

His awards include the Army Achievement Medal, the Armed Forces Expeditionary Medal, the Humanitarian Service Medal, the Army Service Ribbon, the Overseas Service Ribbon, the Sharpshooter Marksmanship Qualification Badge with Rifle Bar and the Driver and Mechanic Badge with Driver-W Bar.

On 12 December 1995, the applicant was tried by a general court-martial of committing sodomy and of committing an assault upon another by repeatedly striking him, wrestling him to the ground and choking him, kicking him with a shod foot, thereby intentionally inflicting grievous bodily harm, to wit: multiple facial fractures including nasal bone fractures of the orbit bone of the left eye; and deep lacerations about the face and head.  He plead guilty and he was found guilty of the sodomy charge.  He plead guilty, by exceptions and substitutions to the assault charge and he was found guilty accordingly.  He was sentenced to a BCD, confinement for 17 months, a reduction to the pay grade of E-1 and a forfeiture of all pay and allowances.

The convening authority approved the sentence as adjudged and on 19 April 1996, the United States Court of Military Review affirmed the findings and sentence as approved by the convening authority.

Accordingly, on 26 February 1997, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 3, as a result of a duly reviewed and affirmed general court-martial conviction.  He had completed 4 years, 4 months and 19 days of total active service and he was furnished a BCD.

On 29 April 2003, the applicant submitted an application to the Army Discharge Review Board requesting an upgrade of his discharge.  However, since that board is not authorized to consider discharges that are the result of a general court-martial conviction, this Board has accepted the DD Form 293 in lieu of the DD Form 149 normally used when applying to the Army Board for Correction of Military Records.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, paragraph 3-11 provides that a soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence duly executed.

Title 10, United Stated Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that the Army Board for Correction of Military Records 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 modify 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 facts of the case.

3.  The Board has noted the applicant’s contentions.  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

___tdh __  ___js____  __tl_____  DENY APPLICATION

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

INDEX

CASE ID	AR2003091087	
SUFFIX		
RECON		
DATE BOARDED	2003/07/22	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	19970226	
DISCHARGE AUTHORITY	AR 635-200, CH 3	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  31	105.0100	
2.  716	144.7300/ASSAULT	
3.  		
4.		
5.		
6.