MEMORANDUM OF CONSIDERATION

IN THE CASE OF:  

	BOARD DATE:            3 May 2000        
	DOCKET NUMBER:   AR1999030716

	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.

	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. John H. Kern		Member	
	Mr. Ernest W. Lutz, Jr.		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 be upgraded to an honorable discharge.

APPLICANT STATES:  In effect, that his wife was not honest when they went to court and that her “statement was inaccurate….”  He notes that the “command managed the entire matter from start to finish, which was recently confirmed by a third party.”  He states he requested “removal from [his] quarters due to marital problems” but the command denied his request and as a result he “singularly paid for an entire incident.”  The applicant indicates that he wishes to attend school and is in need of medical attention.  He submits copies of his Good Conduct Medals in support of his request.  He also submits a copy of a Humanitarian Service Award he received as well as a copy of his 1994 honorable discharge certificate issued at the time of his 1994 discharge for the purpose of immediate reenlistment.  He submits no evidence in support of his claim regarding his court-martial proceedings.

EVIDENCE OF RECORD:  The applicant's military records were not available, information contained herein was extracted entirely from the applicant’s Record of Trial and information contained on his DD Form 214.

He entered active duty on 14 September 1976 and served one year as an infantryman and his remaining service as an intelligence analyst.  The highest grade he attained was E-8.

In August 1996, while assigned to Korea, the applicant was placed in pre-trial confinement after assaulting his wife with a hammer.  He ultimately was charged with attempted murder, with premeditation, uttering checks, with intent to defraud, in excess of $100.00 between May and June 1996, and wrongfully obstructing justice.  The applicant pled not guilty to the attempted murder charge but guilty of aggravated assault.  The military judge found him guilty of aggravated assault with intentional infliction of grievous bodily harm.  He was found guilty, in consonance with his plea, of uttering checks with the intent to defraud and obstructing justice.  His sentence included reduction to pay grade 
E-1, total forfeiture, three years confinement and a bad conduct discharge.

The Record of Trial indicates that the applicant was living in Korea with his spouse and two children at the time of the assault.  It also indicates that he and his spouse (an active duty first sergeant) had marital problems and that he had asked for alternative living arrangements.  Because alternative living arrangements were not available, and because the applicant was apparently the family’s “sponsor” he remained in his assigned quarters.  

Documents in the Record of Trial indicate the applicant wrote in excess of $6000.00 in checks on a closed account.  He noted in his testimony that he had a gambling problem.  Testimony and statements in the transcript note that the applicant hit his spouse in the head with a hammer during the early morning hours of 12 August 1996.  She was treated, released an ultimately returned to duty.

The findings and sentence were affirmed in January 1999 and his petition for grant of review was denied in June 1999.

On 21 July 1999, after more than 200 days in an excess leave status, the applicant’s bad conduct discharge was executed.

Army Regulation 635-200 also states that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

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.  There is no evidence, nor has the applicant provided any, that an error or injustice occurred in the processing of his court-martial or subsequent discharge.

2.  While he contends that his wife was somehow not honest in her testimony, or that the government was somehow responsible for his actions is without foundation.  The evidence indicates the applicant was found guilty, in consonance with his plea, and he has not shown to the satisfaction of the Board that there was any indication that he was not guilty of the offenses which resulted in his bad conduct discharge.

3.  His desire for continued educational opportunities and medical attention is not sufficient to warrant an upgrade of his discharge in view of the seriousness of the charges for which he was court-martialed.

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 the aforementioned 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

__rvo___  __jhk___  __ewl___  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999030716	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000503	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	Deny	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.