MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            
	DOCKET NUMBER:   AR2002075508

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Ms. Sherri V. Ward		Member	
	Mr. Melvin H. Meyer		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:  Reconsideration of his request for an upgrade of his bad conduct discharge (BCD).

APPLICANT STATES:  In effect, that his BCD should be upgraded to a general discharge because it is unjust for him to be harshly judged for one mistake in his career, when he spent 3 years in a Federal penitentiary paying for that mistake.  He goes on to state that he is presently working as a patient worker employed in a Veterans Home and Hospital and has applied for training as a certified nursing assistant.  He further states that his discharge should be upgraded so that he might continue to be of service to his fellow veterans, his family and himself.   

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case (AC82-05391) on 10 November 1982.

The applicant originally enlisted on 29 June 1972 and served until 15 June 1975, when he was honorably discharged for the purpose of immediate reenlistment.  He reenlisted on 16 June 1975 and served until he was honorably discharged on 3 April 1978, for the purpose of immediate reenlistment.  He again reenlisted on 4 April 1978, in the pay grade of E-5.

In the applicant’s previous application to the Board, he stated that there was no error or injustice in his case.  He simply wanted the Board to consider his application in view of his honorable active service during his first two enlistments.  

The Board concluded at that time that he had been properly convicted by a general court-martial on 23 October 1979, of possession and illegal transfer of heroin, larceny, possession of drug paraphernalia, and breaking restriction.  He was sentenced to confinement at hard labor for 1 year, a forfeiture of pay and a BCD.  The Army Court of Military Review affirmed the findings and sentence as approved by the convening authority on 30 January 1980.  Accordingly, he was properly discharged pursuant to a duly reviewed and affirmed court-martial conviction on 16 May 1980.  He had served 7 years, 1 month and 21 days of total active service and had 267 days of lost time due to imprisonment.

However, the Board also concluded that his satisfactory performance of duty during his first two enlistments ending on 3 April 1978, warranted a complete and unconditional separation from the service and that his BCD had worked an injustice upon him by depriving him of veterans benefits.  Accordingly, the Board directed that his records be corrected to show that his discharge on 3 April 1978, was a complete and unconditional separation from the service.  The Board denied his request to upgrade his BCD on 10 November 1982.

Title 10, United States Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that the Board is not empowered to set aside a 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.

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.  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.

2.  The type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case.

3.  The applicant’s contentions have been noted by the Board.  However, they are not sufficiently mitigating to warrant further relief than that previously granted by the Board, when compared to the seriousness of his offenses and his grade and time in service at the time he committed the offenses.

4.  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.

5.  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

___js____  ___mm__  __sw ___  DENY APPLICATION

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

INDEX

CASE ID	AR2002075508	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/11/19	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	1980/05/16	
DISCHARGE AUTHORITY	AR635-200, PARA 11-2	
DISCHARGE REASON	GCM	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  675	144.6800/A68.00	
2.		
3.		
4.		
5.		
6.