MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           6 June 2002        
	DOCKET NUMBER:   AR2001064471

	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. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Mr. Stanley Kelley		Chairperson	
	Mr. John T. Meixell		Member	
	Mr. Thomas E. O’Shaughnessy		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 honorable or general.

APPLICANT STATES:  In effect, that his court-martial charges were the result of his youth and bad judgment.  He contends that he violated the general regulations by storing his personal firearm inside his vehicle.  He states that he 
communicated one threat against a private who stole his personal property from the barracks.  He also contends that he communicated the other threat when he was attacked by another private after he told the private to stop invading his privacy.  He further states that his bad conduct discharge is unduly harsh considering his good military service record.  In support of his application, he submits a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty); a copy of his DA Form 2-1 (Personnel Qualification Record); a memorandum, dated 25 April 1994; an undated memorandum pertaining to Post Trial Matters; reassignment orders, dated 16 February 1996; General Court-Martial Order Number 3, dated 30 January 1995; Letter of Reprimand, dated 
14 December 1993; an undated DA Form 268-E (Report to Suspend Favorable Personnel Actions (Flag)); Results of Trial, dated 20 April 1994; General Court-Martial Order Number 20, dated 5 July 1994; DA Form 2A (Personnel Qualification Record  - Part 1), prepared on 5 December 1991; and DA Form 
2A, prepared on 25 April 1994. 

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

The applicant enlisted on 6 March 1991 for a period of 3 years.  He successfully completed basic and advanced individual training and was awarded military occupational specialty 19D (cavalry scout). 

On 14 December 1993, the applicant received a Letter of Reprimand for unlawfully carrying a weapon in his automobile.

On 20 April 1994, the applicant was convicted by a general court-martial of failing to obey four lawful general regulations, communicating two threats and carrying a concealed weapon.  He was sentenced to a bad conduct discharge, confinement for one year, forfeiture of all pay and allowances, and reduction to E-1.  On 5 July 1994, the convening authority approved only so much of the sentence as provides for a bad conduct discharge, forfeiture of all pay and allowances, confinement for 138 days and reduction to E-1.

On 16 September 1994, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.  His appellate review was completed on 
30 January 1995.

Accordingly, the applicant was discharged pursuant to the sentence of a general court-martial on 23 February 1996.  He was issued a Bad Conduct Discharge Certificate.  He had served 4 years, 7 months and 4 days of total active service with 133 days lost due to confinement.  

Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

Army Regulation 635-200, paragraph 3-7, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the soldier’s separation specifically allows such characterization.

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 applicant’s contention that he was young at the time is not sufficiently mitigating to warrant relief.  The Board notes that the applicant was 22 years of age when he committed the offenses.

2.  The Board considered the applicant’s contention that he used bad judgment.  However, this matter is not grounds for upgrading his discharge.

3.  The Board reviewed the applicant’s record of service and determined that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to an honorable discharge.

4.  The Board noted that the applicant had served 4 years, 7 months and 
4 days of total active service at the time of his discharge.  However, the Board determined that the seriousness of the offenses for which the applicant received a general court-martial conviction are too serious to warrant relief in the form of a general discharge. 

5.  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 characterized the misconduct for which the applicant was convicted.

6.  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.

7.  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

SK_____  JTM____  TEO_____  DENY APPLICATION

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

INDEX

CASE ID	AR2001064471	
SUFFIX		
RECON		
DATE BOARDED	20020606	
TYPE OF DISCHARGE	(BCD)	
DATE OF DISCHARGE	19960223	
DISCHARGE AUTHORITY	AR 635-200 Chapter 3	
DISCHARGE REASON	Court-martial	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.0200	
2.		
3.		
4.		
5.		
6.