MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 20 September 2001
         DOCKET NUMBER: AR2001056089

         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. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Raymond J. Wagner		Chairperson
Mr. Kenneth W. Lapin		Member
Ms. Paula Mokulis		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: In effect, that his bad conduct discharge (BCD) be upgraded.

APPLICANT STATES: In effect, that he never had a chance to appeal and in the 7 years since his discharge he has been denied medical services by Department of Veterans Affairs (VA) hospitals. He claims that until his mistakes he had a clean record and that he had already taken care of the problems resulting from his mistakes before they became known. He indicates that all he is asking for is a chance to better care for his family.

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

He served on active duty for a total of 13 years, 6 months, and 1 day until
20 April 1995, at which time he was separated with a BCD under the provisions of chapter 3, Army Regulation 635-200, by reason of court-martial.

The applicant’s service record confirms that on 6 February 1987, he was promoted to the rank of sergeant/E-5, which is the highest rank he attained while serving on active duty. It also shows that during his active duty tenure he earned the following awards: Southwest Asia Service Medal with 2 bronze service stars, denoting his participation in two campaigns of the Persian Gulf War; Army Commendation Medal; Army Good Conduct Medal 2^nd award; National Defense Service Medal; NCO Professional Development Ribbon; Army Service Ribbon; Overseas Service Ribbon 2^nd award; Expert Marksmanship Qualification Badge-Hand Grenade; Marksman Marksmanship Badge-M-16 Rifle; and Kuwait Liberation Medal.

The applicant’s Official Military Personnel File reveals that in September 1993, he was barred from reenlistment based on the following events: January 1993, police investigation for obtaining services under false pretenses to which he admitted guilt although charges were never brought based on the statute of limitations; March 1993, letter of indebtedness; April 1993, dishonored check of $745.00; and May 1993, finance notification report of $3,875.00 in dishonored checks.

On 18 November 1993, the applicant was tried and convicted by a GCM of violations of Article 123a, 3 specifications, for wrongfully uttering worthless checks with the intent to defraud; and Article 80, for attempting to obtain services under false pretences with the intent to defraud. The resultant sentence included a BCD and a reduction to private/E-1.

On 25 March 1994, the GCM action was promulgated in GCM Order 10, issued by Headquarters, 21^st Theater Army Area Command, Unit 23203, APO
AE 09263, and the sentence was approved and ordered executed with the exception of the BCD.
On 31 August 1994, the United States Army Court of Military Review upon consideration of the entire record, held that the findings of guilty and the sentence as approved by the convening authority were correct in law and fact and accordingly, affirmed those findings of guilty and the sentence. This affirmation was confirmed in GCM Order 18, dated 27 February 1995, issued by Headquarters, United States Army Armor Center, Fort Knox, Kentucky and the BCD portion of the sentence was ordered executed.

On 20 April 1995, the applicant was discharged accordingly. The separation document (DD Form 214) issued to him on the date of his discharge contained the following entry in block 18 (remarks): “Continuous honorable active service from 811020 to 910728”.

Title 10 of the United States Code, section 1552 as amended does not permit any redress by this Board of the finality of a court-martial conviction and empowers the Board to only change a discharge if clemency is determined to be appropriate.

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. The Board notes the contentions of the applicant that he has never had the opportunity to appeal and that he is unable to obtain medical benefits from the VA but finds these claims are not sufficiently mitigating to warrant the requested relief.

2. The applicant is further advised that his entitlement to medical benefits administered by the VA are determined by the policies and procedures of that agency. Thus, any claim of entitlement to medical care should be addressed to the appropriate VA office.

3. The evidence clearly shows and the Board is satisfied that the applicant was afforded every legal right in connection with the GCM proceedings against him and that his trial was warranted by the gravity of the offenses for which he was charged.

4. The applicant’s GCM conviction and the resultant BCD were effected in accordance with applicable law and regulations in effect at the time. Further, the BCD portion of the sentence was not effected until he had been afforded all legal appeals and the findings and sentence were finally affirmed by the United States Army Court of Military Review.

---

5. By law, any redress by this Board of the finality of a court-martial conviction is prohibited. The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the punishment imposed. The Board finds no evidence presented in this case warrants clemency.

6. Finally, the Board notes that the applicant served honorably for almost
10 continuous years. However, it concludes that this continuous period of honorable active military service, from 20 October 1981 to 28 July 1991, was appropriately recognized with an entry in the remarks portion of his separation document. In the opinion of the Board, this entry along with other documents of file adequately recognize his honorable active service and accomplishments for that period and an upgrade of the BCD under review is neither appropriate nor necessary to acknowledge this prior honorable service.

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

__RJW___ __KWL__ ___PM___ DENY APPLICATION

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

---

INDEX

CASE ID	AR2001056089
SUFFIX
RECON
DATE BOARDED	2001/09/20
TYPE OF DISCHARGE	BCD
DATE OF DISCHARGE	1995/04/20
DISCHARGE AUTHORITY	AR 635-200 C3
DISCHARGE REASON	GCM
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 189	110.0000
2.
3.
4.
5.
6.