MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:           3 August 2000        
	DOCKET NUMBER:   AR1999032336

	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. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Edwin S. Castle		Member	
	Mr. Orville W. Troesch 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 (BCD) be upgraded to an honorable discharge and that he be awarded the Good Conduct Medal (GCMDL).  He is not looking for veteran’s benefits.

APPLICANT STATES:  That he believes that the BCD that he received is unfair and excessive punishment.  The BCD still negatively impacts his life.

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

That on 1 June 1989, he enlisted in the Regular Army for a period of 4 years and training in military occupational specialty (MOS) 88K (Watercraft Operator).  He completed basic and advanced individual training and on 28 October 1989, he was assigned to Fort Eustis, Virginia. 

On 10 May and on 10 July 1991, nonjudicial punishment (NJP) was imposed against him under the provisions of Article 15, Uniform Code of Military Justice, for failure to go to his appointed place of duty at the prescribed time on 
22 April and on 22 and 25 June 1991.  His punishments included reduction from pay grade E-2 to pay grade E-1, extra duty and restriction.

On 28 August 1991, the applicant was convicted by a special court-martial of 
failure to go to his appointed place of duty on 28 June 1991, breaking restriction on 5 July 1991, willful disobedience of a commissioned officer and of a noncommissioned officer and of assault consummated by battery on 22 July 1991.  He was sentenced to forfeiture of $500.00 pay per month for 5 months, to be confined at hard labor for 5 months and to be separated with a BCD.

The convening authority approved the sentence adjudged, except for that part pertaining to confinement at hard labor for 5 months.  His period of confinement was reduced to 3 months.  He was credited with the time that he had already served in confinement.

On 30 September 1991, he was released from confinement and on 10 October 1991, he was placed on excess leave pending the appellate review of his BCD.  

On 18 March 1992, the United States Court of Military Review affirmed the findings and approved the sentence.  On 21 May 1993, the appropriate authority ordered the BCD duly executed. 

On 4 June 1993, the applicant was discharged, in absentia, under the provisions of chapter 3, Army Regulation 635-200, with a BCD as a result of court-martial.  His DD Form 214 (Certificate or Release or Discharge from Active Duty) shows that he had completed 3 years, 10 months and 27 days of active military service and he had 34 days lost time due to being in military confinement.

His DD Form 214 also shows that he was awarded the Army Service Ribbon, the National Defense Service Medal, the Marksman Badge (M16 Rifle) and the Expert Badge (Hand Grenade).  It does not show that he was awarded the Good Conduct Medal.

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 ordered duly executed.

Army Regulation 600-8-22 provides that the Good Conduct Medal is awarded to individuals who distinguish themselves by their conduct, efficiency and fidelity during a qualifying period of active duty enlisted service.  This period is 3 years except in those cases when the period for the first award ends with the termination of a period of Federal military service.  Although there is no automatic entitlement to the Good Conduct Medal, disqualification must be justified.  

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.

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.  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.

2.  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.

3.  There has been no basis established to grant clemency in this case.

4.  Further, the Board concluded that due to the nature of the applicant’s offenses during his first 3 years of service, he is not entitled to award of the GCMDL.

5.  Entitlement to Department of Veterans Affairs benefits rests with that agency, not this Board.

6.  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

__jns____  __esc___  __owt ___  DENY APPLICATION

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

INDEX

CASE ID	AR1999032336	
SUFFIX		
RECON		
DATE BOARDED	20000803	
TYPE OF DISCHARGE	(BCD)	
DATE OF DISCHARGE	19930604	
DISCHARGE AUTHORITY	AR 635-200, Chapter 3  	
DISCHARGE REASON	A68.00	
BOARD DECISION		
REVIEW AUTHORITY		
ISSUES         1.	144.6800	
2.		
3.		
4.		
5.		
6.