MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            19 September 2002
	DOCKET NUMBER:   AR2002076969

	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:

	Ms. JoAnn H. Langston		Chairperson	
	Ms. Melinda M. Darby		Member	
	Mr. Ronald E. Blakely		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 dishonorable discharge be upgraded to honorable.

APPLICANT STATES:  The applicant has offered no argument or evidence in support of his request for an upgrade of his discharge.

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

He enlisted in Los Angeles, California, on 28 February 1989 for a period of 3 years and 14 weeks, training as an infantryman and assignment under the Cohort Enlistment Program.  He successfully completed his training and was transferred to Alaska.  He reenlisted in the pay grade of E-4 on 18 November 1991, for a period of 3 years.

On 1 February 1993, while assigned to Fort Ord, California, he was promoted to the pay grade of E-5.  On 14 June 94, while assigned to Fort Lewis, Washington, he reenlisted for a period of 4 years under the Army Ranger Reenlistment Option and payment of a selective reenlistment bonus. 

On 22 February 1995, the applicant plead guilty to all charges and was convicted by a general court-martial of a charge consisting of six specifications of larceny of personal property and two specifications of wrongful appropriation of personal property, a charge consisting of four specifications of forgery and two specifications of wrongfully making a check with intent to deceive, and a charge of wrongful solicitation.  He was sentenced to a dishonorable discharge, reduction to the pay grade of E-1, a forfeiture of $800.00 per month for 36 months and confinement for 36 months.  The convening authority approved the sentence; however, he suspended that portion of the sentence that pertained to confinement for 36 months and directed that confinement in excess of 18 months was suspended for 24 months, unless sooner vacated.  He was transferred to the Army Disciplinary Barracks at Fort Leavenworth, Kansas, to serve his confinement.

On 14 October 1997, the Army Disciplinary Barracks published orders indicating that the applicant’s finding and sentence, as approved by the convening authority, had been affirmed and that discharge was directed.

Accordingly, the applicant was discharged on 14 November 1997, pursuant to a duly reviewed and affirmed court-martial conviction.  He had served 7 years, 2 months and 17 days of total active service and had 548 days of lost time due to confinement.  

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 has offered no evidence or argument in support of his application which would suggest that his trial by court-martial was in error or unjust or that there were mitigating circumstances that should have been considered.   Accordingly, after considering the available facts of the case, the Board finds no basis to warrant relief. 

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

__md ___  ___jhl ___  __reb ___  DENY APPLICATION

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

INDEX

CASE ID	AR2002076969	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/09/19	
TYPE OF DISCHARGE	DD	
DATE OF DISCHARGE	1997/11/14	
DISCHARGE AUTHORITY	AR635-200/3-10/gcm	
DISCHARGE REASON	Trial by cm	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  675	144.6800/a68.00	
2.		
3.		
4.		
5.		
6.