MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           23 April 2002                   
	DOCKET NUMBER:   AR2001066039

	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:

	Ms. Karol A. Kennedy		Chairperson	
	Mr. Mark D. Manning		Member	
	Mr. Thomas Lanyi		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 a general discharge under honorable conditions.  

APPLICANT STATES:  That at the time of his enlistment, he was young and he had experienced the tragic loss of both his father and older brother within a year. He enlisted in the military for structure, discipline and mature guidance.  At age 40 years, he is mature and he understands the importance of a clean history.  Since being discharged, he has joined a church and he has become an honorable, respectable citizen.  He has been remorseful for the past 20 years because he understands that he must take responsibility for his actions and suffer the consequences for those actions.  He is asking for mercy not only for himself, but also for his family.  His son wants to follow in his footsteps and he is ashamed to tell him that he has a discharge that is less than honorable.  An upgrade may also entitle him to receive veteran's benefits.

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

That on 3 November 1980, he enlisted in the Delayed Entry Program (DEP).  On 13 January 1981, at age 20, he was discharged from the DEP and he enlisted in the Regular Army for 3 years and training in military occupational specialty (MOS) 76P (Materiel Control and Accounting Specialist).  Following completion of all required military training; he was awarded MOS 76P and assigned to Germany on 1 June 1981.

On 14 June 1982, the applicant was convicted by a special court-martial of selling marijuana in the hashish form on 1 and 27 February 1982.  He was sentenced to reduction from pay grade E-3 to pay grade E-1, forfeiture of $200.00 pay per month for 3 months, confinement at hard labor for 75 days, and to be discharged with a BCD.  

On 12 August 1982, while confined at the United States Army Retraining Brigade, Fort Riley, Kansas, nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), was imposed against the applicant for failure to obey a lawful order given by a noncommissioned officer on 11 August 1982.  His punishment included forfeiture of $100.00 pay per month for 1 month, 2 hours of extra duty, and restriction for 1 day.

On the same date, the applicant was released from confinement and he was placed on excess leave.  

On 8 September 1982, the convening authority approved the sentence adjudged and the applicant’s record of trial was forwarded to the United States Court of Military Review. 

On 21 July 1983, the United States Court of Military Review affirmed the findings and approved the sentence and the appropriate authority ordered the BCD to be duly executed. 

On 3 August 1983, the applicant was discharged in absentia under the provisions of chapter 3, Army Regulation 635-200, with a BCD as a result of his conviction in a trial by court-martial.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he completed 2 years, 4 months and 21 days of active military service and he had 60 days of lost time due to being in military confinement.  

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.

Court-martial convictions stand as adjudged or modified by appeal through the judiciary process.  In accordance with Title 10, United States Code, Section 
1552, the authority under which this Board acts, the ABCMR is empowered to change the severity of the sentence imposed in the court-martial process 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.

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.  The Board commends the applicant for his accomplishments since departing the military.  However, post service accomplishments alone do not provide the Board a basis to grant clemency.  

4.  The Board has also taken into consideration the applicant’s contention that he was young and immature.  However, at the time of his enlistment, he met all entrance qualification standards, to include age.  There is no evidence that he was any less mature than other soldiers who successfully completed their military service obligation.

5.  Additionally, there is no evidence available to indicate that personal problems contributed to the applicant's actions.  Even if true, he had many other legitimate avenues through which to obtain assistance with his personal problems without committing the offense that led to his separation.

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

__KAK__  __MDM__  __TL  ___  DENY APPLICATION

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

INDEX

CASE ID	AR2001066039	
SUFFIX		
RECON	 	
DATE BOARDED	20020423 	
TYPE OF DISCHARGE	(BCD)	
DATE OF DISCHARGE	19830803	
DISCHARGE AUTHORITY	AR635-200  	
DISCHARGE REASON	A68.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.6800	
2.		
3.		
4.		
5.		
6.