MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           5 March 2002                   
	DOCKET NUMBER:   AR2001063926

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Thomas B. Redfern, III		Member	
	Mr. Donald P. Hupman, 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 discharge be upgraded to fully honorable.  He also apparently requests copies of his pay account.

APPLICANT STATES:  That he has lived a good life since his discharge.  He would like to receive an honorable discharge for the time he served honorably.  He provides no supporting evidence.

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

He enlisted in the Regular Army on 2 December 1982 for 3 years.  He completed basic training and advanced individual training and was awarded military occupational specialty 13B (Cannon Crewmember).  He accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice on 17 July 1984 for violating a lawful general order by having five six-packs of beer.  The Article 15 indicates there is a continuation sheet but it is not available.  He was honorably discharged on 6 November 1985 for the purpose of immediately reenlisting on    7 November 1985 for 3 years.

On 22 June 1988, the applicant was convicted by a special court-martial of assault by striking another soldier on the head with a means likely to produce death or grievous bodily harm, to wit:  a pool cue.  He was sentenced to forfeit $447.00 pay for one month, to be reduced to pay grade E-1, to be confined for one month, and to be discharged with a bad conduct discharge.  

On 20 July 1988, the applicant was placed in an excess leave status pending appellate review of his sentence.  He was informed that excess leave would be without pay and allowances.

On 29 March 1989, the U. S. Army Court of Military Review noted that during sentencing the Government offered a record of nonjudicial punishment for an infraction of a regulation:  possession of five six-packs of beer.  The paperwork indicated that additional offenses were listed on an “attached sheet” but the attached sheet was missing.  The military judge ruled that even if the defense wanted to object to it, he would overrule the objection, thereby preserving the possibility of somebody, on appeal, invalidating that exhibit.  The Court agreed that admission of the incomplete record was in error.  The Court considered the other errors asserted, including the error personally raised by the applicant, and found them to be without merit.  The findings of guilty were affirmed.  The Court reassessed the sentence on the basis of the error noted and the entire record and affirmed the sentence.

On 20 October 1989, the applicant was discharged with a bad conduct discharge pursuant to his conviction by a special court-martial.

On 8 June 1995, the Army Discharge Review Board concluded that the applicant’s length and quality of service warranted clemency and voted to grant a general discharge under honorable conditions.  Item 18 of his Certificate of Release or Discharge from Active Duty, DD Form 214, shows he had continuous honorable active service from 2 December 1982 – 6 November 1985.

Army Regulation 635-5 effective 1 October 1979 ended the need to prepare a Certificate of Release or Discharge from Active Duty, DD Form 214, for enlisted members who are discharged for immediate reenlistment.

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 offense 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.  The ADRB exercised its discretion when it upgraded the applicant’s bad conduct discharge to a general discharge under honorable conditions based upon clemency and his length and quality of service.  Notwithstanding the applicant’s contention that he has lived a good life since his discharge, considering the gravity of the offense charged the Board concludes that further upgrade is not warranted.

4.  The applicant’s DD Form 214 already reflects the fact his first period of service was honorable.

5.  As for requesting copies of his pay account, the applicant should contact the Director, Defense Finance and Accounting Service – Indianapolis Center, ATTN: DFAS-IN-FJA, 8899 East 56th Street, Indianapolis, IN  46249-2301.  If after receiving the information he requests he determines that there was a problem with his pay, he should submit an application to the Board clearly outlining the problem and his expected resolution, with all necessary supporting evidence (such as copies of his pay account), and the Board will consider his application.

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

__fne___  __tbr___  __dph___  DENY APPLICATION

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

INDEX

CASE ID	AR2001063926	
SUFFIX		
RECON		
DATE BOARDED	20020305	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	105.01	
2.		
3.		
4.		
5.		
6.