MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           5 February 2002                   
	DOCKET NUMBER:  AR2001063204

	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	
	Mr. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Ms. Karol A. Kennedy		Member	
	Mr. Roger W. Able		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 records be corrected to show he was honorably discharged.

APPLICANT STATES: That during the time of his punishment, personal and financial problems impaired his ability to serve and complete his tour of duty.  At this time, he would like to have his medical records checked so that he may be able to receive medical treatment for his surgery.  He indicates he now has a family that would benefit from his upgrade in discharge by receiving better housing, medical, education and other benefits.  He further indicates that it has been over three years since his discharge and he has learned that he damaged himself and the good name of the U. S. Army.  He understands that his current rehabilitation and this discharge upgrade would benefit his family most of all.

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

During the period 20 September through 30 October 1989, the applicant served in the Army Reserve Delayed Enlistment Program.

On 31 October 1989, he enlisted in the Regular Army.  He completed his required training and was awarded military occupational specialty 11C (Indirect Fire Infantryman).  He was advanced to pay grade E-2.

On 3 December 1990, while serving in Germany and in consonance with his pleas, he was convicted by a general court-martial (GCM) of unlawful entry, absent without leave, three counts of larceny and conspiracy to commit larceny.  His sentence consisted of a bad conduct discharge (BCD), forfeiture of all pay and allowances and confinement for 2 years.  He was reduced to the lowest enlisted grade.

On 6 April 1991, the sentence was approved.

On 28 June 1991, the Court of Military Review affirmed the findings and sentence.

On 10 December 1991, while confined at the Regional Confinement Facility, Fort Lewis, Washington, General Court Martial Order 54 directed the BCD be executed. 

On 29 May 1992, he was issued a BCD, in pay grade E-1, based on the result of a court-martial.  His separation document indicates he had 1 year, 2 months and 2 days of creditable service and 1 year, 4 months and 26 days of lost time.

Army Regulation 15-180 provides for petitioning the Army Discharge Review Board (ADRB), using DD Form 293, for upgrade of the characterization for discharge.  The regulation specifies that the ADRB may not consider an appeal for an upgrade from an applicant discharged as a result of a GCM.

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.  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 moderate the severity of the punishment imposed.

Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 3-7 provides that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the member'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 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.  The gravity of the offenses charged warranted trial by GCM.  His 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.  His contentions were noted; however, they do not sufficiently support or entitle him to a discharge upgrade.

2.  Title 10, United States code, section 1552, as amended, does not permit any redress by this Board that would disturb the finality of a court-martial conviction in this case.

3.  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, unjust or that clemency is appropriate.  The applicant has failed to submit evidence that would satisfy this requirement.

4.  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

_kak____  _rwa____  _jh_____ DENY APPLICATION

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

INDEX

CASE ID	AR2001063204	
SUFFIX		
RECON		
DATE BOARDED	20020205	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.00	
2.		
3.		
4.		
5.		
6.