MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           4 September 2003                   
	DOCKET NUMBER:   AR2002081090

	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:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. Frank C. Jones, II		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 that of an honorable discharge. 

APPLICANT STATES:  That he made a bad decision that has caused him disgrace and cost him his military career and, as a result, he is being punished everyday.  He states that conviction for a sexual offense prohibits him from taking advantage of many employment opportunities and denies him choices when he searches for places to live.  He says that he has learned a valuable lesson that you cannot take things into your own hands.  He wants his discharge upgraded so that he can have his life back, and regain his honor and self-esteem.  He requests the Board take into consideration the numerous awards, badges, medals and ribbons he earned while he was on active duty. 

In support of his request, the applicant submits letters from the Mayor of Fitzgerald, Georgia, an officer in the United States Navy; and a member of the Georgia Army National Guard.  He also submits character reference letters from the Ben Hill County (Georgia) Sheriff, a Magistrate Judge in the Ben Hill County Office of the Magistrate, and the Vice Chairman, Ben Hill County Board of County Commissioners.  All letters that the applicant provided are from individuals that have known him either for several years or for most of his life.  The applicant is described as a selfless person, eager to succeed.  He has strong leadership qualities and he is a diligent and dedicated worker.  He supports his community by becoming involved in community projects.  

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

That prior to the period of enlistment under review, he served honorably in the Regular Army (RA) from 27 October 1995 - 4 April 1999.

On 5 April 1999, he reenlisted in the RA for 3 years in military occupational specialty (MOS) 88M (Motor Transport Operator) and in pay grade E-4.

On 4 April 2000, at Fort Stewart, Georgia, the applicant was convicted, pursuant to his pleas, by a general court-martial of:  failure to go to his appointed place of duty at the time prescribed; unlawfully striking a female soldier on the head, legs and shoulder with his hand; and wrongfully communicating to a female soldier a threat that, if she screamed, he would beat her down; and willfully and wrongfully confining and carrying away a female soldier (a person not a minor) against her will; committing an indecent assault upon a person not his wife on 18 June 1999.  He was sentenced to reduction from pay grade E-4 to pay grade E-1, forfeiture of all pay and allowances, to be confined for 125 days, and to be separated with a BCD.  

The applicant remained in military confinement from 4 April 2000 to 16 July 2000. On 17 July 2000, he was placed on excess leave pending completion of the appellate review process.  

On 5 October 2000, the United States Army Court of Criminal Appeals affirmed the findings and approved the sentence.  On 9 January 2001, the United States Court of Appeals for the Armed Forces denied the applicant's petition for grant of review.  On 16 February 2001, the appropriate authority ordered the BCD to be duly executed. 

On 11 May 2001, 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 by a general court-martial.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he completed 5 years, 3 months, and 11 days of active military service and he had 104 days of lost time due to being in military confinement.

The applicant's DD Form 214 also shows that he was awarded the Joint Service Achievement Medal, Army Good Conduct Medal, National Defense Service Medal, Army Service Ribbon, Overseas Service Ribbon, Multinational Force and Observers Medal (2nd award), Sharpshooter Qualification Badge (M-16 Rifle), and the Driver and Mechanic Badge.

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 judicial 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 noted the applicant's military awards, but did not find them sufficiently mitigating to warrant an upgrade in his discharge.  Likewise, the Board noted the applicant's letters of support from prominent members of his local community.  The Board congratulates the applicant on his conduct since he has been separated, however, this does not provide the Board a basis upon which to grant clemency.

4.  In view of the foregoing, the applicant has established no basis for the Board to grant clemency. 

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

__rvo___  __bje___  __fcj___  DENY APPLICATION

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

INDEX

CASE ID	AR2002081090	
SUFFIX		
RECON		
DATE BOARDED		
TYPE OF DISCHARGE	(BCD)	
DATE OF DISCHARGE	20010511	
DISCHARGE AUTHORITY	AR635-200, Chap 3 	
DISCHARGE REASON	A68.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.6800	
2.		
3.		
4.		
5.		
6.