MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:            20 July 2000
	DOCKET NUMBER:   AR1999031534

	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. Antoinette Farley		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Ms. Ann M. Campbell		Member	
	Mr. Kenneth L. Wright		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 military records be corrected by upgrading his dishonorable discharge to an honorable discharge.  In a second application he requests that his two previous honorable discharges be added to his records, as well as entitlement to an Army Commendation Medal.

APPLICANT STATES:  In essence that he wishes to upgrade his discharge and is hoping that this information will shed a favorable light as to the type of soldier he once was.  He served almost 6 years on active duty and also has spent more than 14 years in confinement.  He also wants Department of Veteran Affairs (DVA) benefits.

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

He enlisted in the Regular Army on 12 July 1978 for 3 years.  He completed his 
basic training and advanced individual training at Fort Jackson, South Carolina, in military occupational specialty (MOS) 31M00 (Multi-channel Communications Systems Operator).  On 8 November 1978, he was transferred to Korea for duty. 

Upon his return to the Continental United States in 1979, he was first stationed at Fort Lewis, Washington, and then was further assigned to Fort Eustis, Virginia. 

On 31 March 1981, the applicant reenlisted for 3 years, as a specialist, pay grade E-4.  While still stationed at Fort Eustis, he was retrained and reclassified into MOS 71N00 (Traffic Management Coordinator) and was promoted to the rank of sergeant, pay grade E-5 on 8 October l981.  On 25 November 1981, he was reassigned to Fort Bragg, North Carolina, for duty in his new MOS.  

On 29 March 1984, he reenlisted for 6 years, in pay grade E-5.  On 8 August 1984, after completion of schooling, he was reclassified into MOS 17C20 (Field Artillery Target Acquisition Specialist) and was assigned to Fort Ord, California.

On 23 August 1984, the applicant, after disobeying a lawful order given by the military police, was arrested and the next day was placed in pretrial confinement to await trial by court-martial.

On 23 October 1984, the applicant was convicted, contrary to his pleas, of five specifications of violation of the Uniform Code of Military Justice (UCMJ), all incidents occurring on 23 August 1984.  The first specification was for violation of Article 92, UCMJ, disobeying a lawful order.  The second specification was for violation of Article 120, UCMJ, for rape.  The third, fourth and fifth specifications were for violation of Article 134, UCMJ, two for wrongful communication of a threat and one for disorderly conduct.  His approved sentence included reduction to the pay grade of E-1, forfeiture of all pay and allowances, to be confined at hard labor for 50 years and to receive a dishonorable discharge.  There were no previous convictions considered.  

On 29 May 1986, the United States Army Court of Military Review affirmed the sentence.  On 1 May 1987, General Court-Martial Order Number 156, was issued by Headquarters, 7th Infantry Division and Fort Ord, announcing that the sentence had been affirmed and that the dishonorable discharge was ordered executed. 

On the same date the applicant was discharged, with a dishonorable discharge, under the provisions of Army Regulation 635-200, by reason of conviction by court-martial.  He was credited with 6 years, 1 month, and 12 days of active service and with 945 days lost time due to confinement.  However, he was transferred to the Federal Correctional System to complete the terms of his sentence.

His DD Form 214 (Certificate of Release or Discharge from Active Duty) 
shows in item 13 that he was awarded: the Good Conduct Medal, the 
Army Service Ribbon, the Overseas Service Ribbon, and the Marksman Rifle 
M-16 Qualification Badge.  

However, his records also contain a copy of Permanent Order Number 32-2, Headquarters, 1st Corps Support Command, Fort Bragg, dated 11 June 1984, awarding him the Army Commendation Medal (ARCOM) for Meritorious Service from 24 December 1981 to 16 May 1984.

Further, his DD Form 214, in item 18 (Remarks), shows that he had two prior periods of enlistment in the Regular Army from 12 July 1978 to 30 March 
1981 and 31 March 1981 to 28 March 1984.  

The statutory authority under which this Board was created (Title 10, United States Code, Section 1552, as amended) precludes any action by this Board which would disturb the finality of a court-martial conviction.  The sentence may be modified by the Board based upon a finding of clemency 

Information available to the Board also shows that the applicant has not fully completed the terms of the sentence of the general court-martial panel that was imposed on 23 October 1984, although his sentence has now been reduced to 35 years.  Notwithstanding his being placed in a Federal Correctional Agency facility, his case is reviewed annually by the Army Clemency and Parole Board and that board is empowered to grant clemency in his case.  On 23 June 1999, he was placed on parole from Federal prison until 22 August 2019, but his case still undergoes an annual review for clemency.    

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.  Since the applicant has not exhausted his entitlement of appeals to the Army Clemency and Parole Board, and since his case is annually reviewed by that board, this Board declines to take further action on his request to upgrade his dishonorable discharge issued on 29 May 1987.  When his appeal rights to the Army Clemency and Parole Board have been exhausted, he may again appeal to this Board for correction of his military records.  Accordingly, his current application requesting an upgrade of his discharge, dated 22 September 1999, is administratively closed without action by the Board and is filed with his records.

2.  Since the applicant’s record contains documentary evidence to show that he was awarded the Army Commendation Medal on 11 June 1984, an administrative correction to his DD Form 214 will be made. 

3.  Entitlement to DVA benefits is not within the purview of this Board, but rest with the DVA.

4.  Army regulations provide that prior periods of enlistment are to be recorded in item 18 of the DD Form 214.  Therefore, since his two prior periods of service are already recorded on his DD Form 214, there is no error in his records.  

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 as pertains to his discharge.

NOTE:  Request that the Army Review Boards Agency (ARBA), Support Division, St. Louis furnish the individual concerned a DD Form 215, (Correction to DD Form 214) to correct item 13 of his DD Form 214 by showing that he is entitled to the Army Commendation Medal. 

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__sac___  __amc___  __klw ___  DENY APPLICATION

    Carl W.S. Chun
    Director, Army Board for Correction
of military records

INDEX

CASE ID	AR1999031534	
SUFFIX		
RECON		
DATE BOARDED	20000720	
TYPE OF DISCHARGE	DD	
DATE OF DISCHARGE	19870329	
DISCHARGE AUTHORITY	AR 635-2004	
DISCHARGE REASON	A	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.		
2.		
3.		
4.		
5.		
6.