MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 6 September 2001
         DOCKET NUMBER: AR2001055081

         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. Robert J. McGowan		Analyst

The following members, a quorum, were present:

Mr. Luther L. Santiful		Chairperson
Mr. Melvin H. Meyer		Member
Mr. John T. Meixell		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)

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APPLICANT REQUESTS: That his Bad Conduct Discharge (BCD) be upgraded to an Honorable Discharge (HD).

APPLICANT STATES: In effect, that a group of senior noncommissioned officers (NCOs) and officers disliked him; that he requested discharge for the good of the service in lieu of trial by court-martial on four occasions and received no reply; that he attempted to see the Commanding General without success; that he was tried and found not guilty, then he was tried again on the same charges and found guilty.

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

He enlisted in the Regular Army for 3 years on 27 January 1975 and was trained in military occupational specialty (MOS) 62B, Engineer Equipment Repairman. On 19 October 1977, he reenlisted for 6 years.

The applicant was promoted to the rank of sergeant/E-5 on 12 February 1978. On 6 June 1979, he was administered a company grade nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for failing to obey a lawful order from a captain and for disrespect towards a captain. His punishment consisted of 14 days' extra duty. On 17 December 1979, he was administered a field grade NJP for disrespect towards a first sergeant and a captain. His punishment consisted of reduction to the rank of specialist/E-4. Finally on 1 October 1981, he was administered a company grade NJP for 4 days' absence without leave (AWOL). His punishment consisted forfeiture of $75 pay for 1 month and 7 days of extra duty and restriction.

On 22 July 1981, the applicant was tried and convicted by a special court-martial for the offense of AWOL (2 April 1981-15 May 1981). He was sentenced to reduction to private/E-1, forfeiture of $504 pay per month for 4 months (reduced to $334 per month), and 4 months' confinement at hard labor. He served his sentence to confinement at the United States Army Retraining Brigade (USARB), Fort Riley, Kansas.

On 23 April 1982, the applicant was tried and convicted by a second special court-martial for the offense of AWOL (6 October 1981-3 February 1982). He was sentenced to a BCD, forfeiture of $367 pay per month for 3 months, and 4 months confinement at hard labor. He served his sentence to confinement at the USARB.

On 12 June 1983, the United States Army Court of Military Review upheld the applicant's conviction and affirmed the sentence. On 4 May 1983, the BCD was executed. The applicant had 4 years, 7 months, and 8 days of creditable service on his enlistment and 327 days of lost time due to AWOL and confinement. He had 7 years and 4 months of total creditable service.
The applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade. The ADRB, after considering his case on 7 January 1994, denied his request.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 3 provides that a soldier will be given a BCD pursuant only to an approved sentence to a general court-martial or special court-martial. The appellate review must be completed and the affirmed sentence ordered executed. Chapter 10 provides that a soldier who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Approval or disapproval of the request lies strictly with the general court-martial convening authority.

The Military Justice Act of 1983 (Public Law 98-209) provides, in pertinent part, that military correction boards may not disturb the finality of a conviction by court-martial.

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. The applicant often exhibited a lack of respect for authority and was punished on those occasions by persons in authority; there is no evidence in the record, nor has the applicant presented any, to show that certain NCOs and officers took disciplinary actions against him simply because they disliked him.

3. There is no evidence in the record, nor has the applicant presented any, to show that he was ever acquitted of any court-martial charges then retried and convicted of the same charges. The record does show that the applicant was convicted by two special courts-martial for separate incidents of AWOL.

4. There is no evidence in the record, nor has the applicant presented any, to show that he requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200. Had the applicant submitted such a request, the general court-martial convening authority would have had the sole discretion to accept or reject it.

5. There is no evidence in the record, nor has the applicant presented any, to show that he requested to speak with the Commanding General and was denied such a request.

6. 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.

7. 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

__LLS___ __MHM_ ___JTM__ DENY APPLICATION

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

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INDEX

CASE ID	AR2001055081
SUFFIX
RECON
DATE BOARDED	20010906
TYPE OF DISCHARGE	BCD
DATE OF DISCHARGE	19830504
DISCHARGE AUTHORITY	AR 635-200 C3
DISCHARGE REASON	A71.00
BOARD DECISION	DENY
REVIEW AUTHORITY	DIRECTOR
ISSUES 1.	105.0000
2.	110.0000
3.
4.
5.
6.