MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           13 June 2002
	DOCKET NUMBER:   AR2001065553

	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. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Ms. Celia L. Adolphi		Chairperson	
	Ms. Barbara J. Ellis		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:  In effect, that his bad conduct discharge (BCD) be upgraded.  

APPLICANT STATES:  In effect, he asks for mercy, which would allow him to work as a street vendor in New York.  He claims that his discharge must be upgraded in order for him to obtain a license to do this job.  He indicates that his first term of service was outstanding and he was promoted to sergeant/E-5 (SGT/E-5) in less than two years, and he was placed on the promotion list to staff sergeant/E-6 (SSG/E-6) in less than 3 years.  

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

He served on active duty for 2 years, 11 months, and 26 days, from 5 November 1975 through 30 October 1978, at which time he was honorably separated.  The separation document (DD Form 214) issued to him for this period of service confirms that he held the rank of SGT/E-5 and the military occupational specialty of 36K (Lineman) on the date of his separation.  His record reveals that during his first period of service, he earned no awards, with the exception of an Expert Marksmanship Badge (Rifle & Grenade), and it documents no acts of valor, significant achievement, or service warranting special recognition. 

The applicant reenlisted in the Army and on 9 October 1980, he reentered active duty on the enlistment under review as a SGT/E-5.  He was assigned to Fort Ord, California, where he served until 1982.  He was reassigned to Germany and arrived there on 21 February 1982.  

The applicant’s Official Military Personnel File (OMPF) documents no acts of valor, significant achievement, or service warranting special recognition for the period of service under review.  However, it does contain an extensive absent without leave (AWOL) related disciplinary history, which includes his acceptance of nonjudicial punishment (NJP) in July 1982, and the special court-martial (SPCM) trial and conviction in February 1983, which resulted in his BCD.

On 9 February 1993, the applicant was found guilty of three specifications of AWOL and one specification of escaping lawful custody by a SPCM.  The resultant sentence included a reduction to private/E-1, a forfeiture of $300
per month for 3 months, confinement at hard labor for 3 months, and a BCD.  

On 4 March 1983, the applicant’s SPCM was promulgated in SPCM Order Number 025, published by Department of the Army (DA), Headquarters, 
1st Armored Division, in which the convening authority approved the sentence. 

On 13 September 1983, the United States Army Court of Military Review, based on a review of the entire record, found that the approved findings and sentence in the applicant’s case were correct in law and fact, and they were finally affirmed.  

SPCM Order Number 807, dated 14 December 1983, published by the United States Army Correctional Activity, Fort Riley, Kansas, remitted the remaining portion of the confinement sentence and ordered the remaining unexecuted portion of the sentence, specifically the BCD portion, duly executed.  

On 6 January 1984, the applicant was discharged accordingly after completing 
2 years, 7 months, and 9 days of his current enlistment and a total of 5 years, 
7 months, and 5 days of creditable active military service and having accrued a total of 229 days of time lost due to AWOL and confinement. 

There is no indication that the applicant requested an upgrade of his discharge from the Army Discharge Review Board within its 15 year statute of limitations.  

Title 10 of the United States Code, section 1552 as amended does not permit any redress by this Board of the finality of a court-martial conviction and empowers the Board to only change a discharge if clemency is determined to be appropriate. 

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 Board notes the applicant’s request that his discharge be upgraded in order for him to receive a license for employment.  However, it finds this factor alone is not sufficiently mitigating to warrant the requested relief.  

2.  The evidence of record clearly shows, and the Board is satisfied, that the applicant was afforded every legal right in connection with the SPCM proceedings against him and that his trial was warranted by the gravity of the offenses for which he was charged.  

3.  The evidence of record confirms that the applicant’s SPCM conviction and the resultant BCD were effected in accordance with applicable law and regulations in effect at the time.  Further, the BCD portion of the sentence was not effected until he had been afforded all legal appeals and the findings and sentence were finally affirmed by the United States Army Court of Military Review.

4.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the punishment imposed.  
5.  The Board carefully reviewed and considered the applicant’s prior period of honorable service.  However, it finds that even when considering this honorable period of service, his overall record of service is not sufficiently distinguished to mitigate the misconduct that resulted in his BCD.  

6.  Based on the seriousness of the offenses for which the applicant was convicted during the enlistment under review, the Board concludes that the resultant BCD was an appropriate punishment.  Even after considering the applicant’s issue and his overall record of service, in view of the facts of this case, the Board still concludes that clemency is not warranted.

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

__CLA__  __BJE__  __DPH___  DENY APPLICATION

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

INDEX

CASE ID	AR2001065553	
SUFFIX		
RECON		
DATE BOARDED	2002/06/13	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	1984/01/06	
DISCHARGE AUTHORITY	SPCM, AR 635-200, C3	
DISCHARGE REASON	Court-Martial 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  665	144.6800	
2.		
3.		
4.		
5.		
6.