MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            17 September 2002
	DOCKET NUMBER:   AR2002078415

	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. Elzey J. Arledge, Jr.		Chairperson	
	Mr. Thomas B. Redfern, III		Member	
	Ms. Karen A. Heinz		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 honorable.

APPLICANT STATES:  That he believes his discharge was unfair because he was sick with seizures and his superiors kept giving him orders that he could not perform due to his disability.

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

He enlisted in Houston, Texas, on 5 August 1992 for a period of 4 years and training as an Avenger crewmember.  He successfully completed his training and was assigned to Fort Ord, California, where he remained until he was reassigned to Fort Drum, New York, on 3 July 1993.  He was advanced to the pay grade of E-4 on 1 February 1995. 

On 27 November 1995, the applicant plead guilty to the charges of three specifications of failure to go to his place of duty, willfully missing movement of his unit, disobeying a lawful order from a commissioned officer, and being willfully disrespectful in language towards a commissioned officer.  He was convicted by a special court-martial of the charges and was sentenced to confinement for 5 months, a forfeiture of pay, reduction to the pay grade of E-1 and a BCD.

On 21 April 1997, the United States Army Court of Military Review affirmed the findings and sentence of the special court-martial.

Accordingly, he was discharged on 14 January 1998, pursuant to a duly reviewed and affirmed sentence of a special court-martial conviction.  He had served 5 years, 1 month and 10 days of total active service and had 120 days of lost time due to imprisonment.  

The applicant’s medical records were not available for review by the Board; however, his records do contain a Radiologic Examination Report dated 8 March 1996, which indicates that there were no radiographic cardiopulmonary abnormalities identified.

The applicant applied to the Army Discharge Review Board (ADRB) on 28 March 2002.  He cited the same reasons to that board that he has cited to this Board.  The ADRB denied his request for an upgrade of his discharge on 28 August 2002. 

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 supported by the evidence of record.  The Board also notes that if in fact he had a medical condition that contributed to his misconduct, he had an opportunity to present such evidence at his trial by court-martial.  Accordingly, the Board finds that given the available evidence, his contentions alone are not sufficiently mitigating to warrant relief/clemency, when compared to the seriousness of his 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

___eja __  __kh____  ___tbr___  DENY APPLICATION

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

INDEX

CASE ID	AR2002078415	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/09/17	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	1998/01/14	
DISCHARGE AUTHORITY	SPCM	
DISCHARGE REASON	SPCM	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  685	144.6800/A68.00	
2.		
3.		
4.		
5.		
6.