MEMORANDUM OF CONSIDERATION
IN THE CASE OF:
BOARD DATE: 4 November 1998
DOCKET NUMBER: AC97-05469
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.
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 records be corrected to show he was honorably discharged for the convenience of the government.
APPLICANT STATES: That under the documented circumstances, the penalty imposed was and is excessively harsh.
EVIDENCE OF RECORD: The applicant's military records show:
On 21 November 1984, he reenlisted in the Regular Army (RA) for a period of 6 years. He was advanced to pay grades E-2, E-3, E-4, and E-5, on 9 March 1981, 9 May 1981, 1 January 1982, and 19 May 1983, respectively.
On 29 September and 10 November 1988, the applicants commander preferred court-martial charges against him for assaulting persons then known by him to be persons having and in the execution of their military police duties, by pointing at them a dangerous weapon, to wit: a loaded .45 caliber revolver.
On 14 December 1988, the applicant was tried by a general court-martial at Hanau, Federal Republic of Germany, and found guilty on two charges of aggravated assault with a dangerous weapon, in violation of Article 128, Uniformed Code of Military Justice. He was sentenced to 6 months confinement, total forfeitures, reduction to pay grade E-1, and a bad conduct discharge (BCD).
On 23 March 1989, a Mental Status Evaluation and a Physical Examination, cleared the applicant for separation.
On 5 May 1989, the applicant was placed on excess leave pending the results of the appellate review of his court-martial.
On 20 July 1989, the United States Army Court of Military Review, affirmed the findings and the sentence of the applicants court-martial.
There is not evidence in the available records that the applicant ever petitioned the US Court of Military Appeals for a review of his case.
On 16 October 1989, General Court-Martial Order 823, directed the execution of the BDC, with that part of the sentence extending to confinement having been served.
On 24 October 1989, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 3, section IV, with a BCD. His Report of Separation indicates he had 4 years , 6 months and 12 days of active service, and 142 days of lost time due to confinement.
Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 3, section IV, provides that a soldier will be given a BCD pursuant only to an approved sentence of a general court-martial or SPCM empowered to adjudicate a BCD. The appellate review must be completed and the affirmed sentence ordered and duly executed.
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.
2. The applicant has failed to submit evidence that would satisfy the aforementioned requirement.
3. There is no evidence to substantiate the applicants claim that his punishment was excessively harsh. 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.
4. 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
__JEV___ __LLS___ ___TNK__ DENY APPLICATION
Loren G. Harrell
Director
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