MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 30 April 2002
         DOCKET NUMBER: AR2001065731


         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. Beverly A. Young		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Hubert O. Fry		Member
Mr. Thomas E. O'Shaughnessy		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: Reconsideration of his earlier appeal to correct his military records by upgrading his discharge under other than honorable conditions to an honorable discharge and payment of retirement benefits for his 20 years of honorable service.

APPLICANT STATES: That appeals in his case were not completed and that his requests for retirement benefits were not processed. The applicant contends that the appeals in his case were not completed, filled out, or signed by him.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in the decisional document prepared to reflect the consideration of Docket Number AC92-07029 by the Army Board for Correction of Military Record’s (ABCMR) on 24 November 1993.

The applicant’s arguments regarding appeal of his court-martial conviction and processing of his retirement are new arguments which will be considered by the Board.

The facts and circumstances pertaining to the applicant’s discharge under the provisions of chapter 10 of Army Regulation 635-200 are not present in his records. However, the applicant’s DD Form 214 (Report of Transfer or Discharge) shows that he was discharged on 20 October 1989 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service -in lieu of trial by court-martial and that he was issued an under other than honorable conditions discharge. At the time of his discharge, he had completed 21 years, 9 months and 2 days active military service.

Notwithstanding the entries on the applicant’s DD Form 214, evidence of record shows the applicant was tried by general court-martial in April 1988 and, based on his own request, accepted the adjudged sentence to be separated with a bad conduct discharge (in addition to a forfeiture and reduction) instead of receiving the sentence agreed to as a result of a plea bargain executed prior to trial.

Records show that, on 30 November 1988, the Army Court of Military Review approved the bad conduct discharge, but amended the amount of the forfeiture. Records also show that the United States Court of Military Appeals considered the applicant’s case and denied his petition for grant of review on 9 March 1989.

Evidence of record demonstrates the applicant’s DD Form 214 was improperly prepared at the time of his separation in that it showed that he was separated
under other than honorable conditions based on the provisions of Army Regulation 635-200, chapter 10, instead of with a bad conduct discharge adjudged by a general court-martial.
Evidence of record cited in the consideration of Docket Number AC92-07029 by the Army Board for Correction of Military Record’s (ABCMR) on 24 November 1993 shows that the U.S. Total Army Personnel Command (PERSCOM) had processed the applicant’s request for retirement and had approved it on 20 May 1988, which was prior to completion of appellate review and execution of the adjudged sentence which included the bad conduct discharge.

Army Regulation 15-185 sets forth the policy and procedures for the ABCMR. It provides that, if a request for a reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration. The staff of the Board is authorized to determine whether or not such evidence has been submitted.

The regulation provides further guidance for reconsideration requests that are received more than 1 year after the Board’s original consideration or after the Board has already reconsidered the case. In such cases, the staff of the Board will review the request to determine if substantial relevant evidence has been submitted that shows fraud, mistake in law, mathematical miscalculation, manifest error, or if there exists substantial relevant new evidence discovered contemporaneously with or within a short time after the Board’s original decision. If the staff finds such evidence, the case will be resubmitted to the Board. If no such evidence is found, the application will be returned without action.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member 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. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel. Paragraph 3-11 of this regulation states that a soldier will be given a bad conduct discharge 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.

Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

Section 1552(f), Title 10, United States Code states that the Army Board for Correction of Military Records can only review records of court-martial and related administrative records to correct a record to accurately reflect action taken by reviewing authorities under the Uniform Code of Military Justice (UCMJ) or to take clemency action.

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. Headquarters, 7th Infantry Division and Fort Ord (California) General Court Martial Order Number 8, dated 30 March 1989, shows the applicant was convicted by a general court-martial on 25 April 1988 of bribery. He was sentenced to a bad conduct discharge, forfeiture of $447.00 pay per month for 12 months, and reduction to pay grade E-1.

2. Although there is no evidence available to the Board which indicates that the applicant requested discharge under chapter 10 of Army Regulation 635-200 in lieu of court-martial prior to the final action taken by the general court-martial convening authority (GCMCA), the applicant was issued a DD Form 214 which indicates that he was discharged on 20 October 1989 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial. This DD Form 214 also shows that he was separated with an under other than honorable conditions discharge.

3. It is apparent to this Board that, but for an administrative error, the applicant would have received a DD Form 214 which showed he had been separated from active duty with a bad conduct discharge adjudged by a general court-martial.

4. The Board considered the applicant’s contention that appeals in his case were not completed, specifically that he did not complete, fill out, or sign them. However, the Board found that evidence of record shows the Army Court of Military Review took action in the applicant’s case and the United States Court of Military Appeals considered his case and denied his petition for grant of review. Therefore, this applicant’s contention is without merit.

5. The Board considered the applicant’s contention that his retirement benefits have not been processed. Evidence of record shows that PERSCOM did process his retirement on 20 May 1988. However, the Board determined that the adjudged and approved sentence to be separated with a bad conduct discharge, rendered him ineligible for receipt of retired pay and benefits. The Board also noted that separation with an Under Other Than Honorable Conditions Discharge Certificate resulting from processing under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by court-martial also would render a soldier ineligible for receipt of retired pay and benefits.

6. This Board noted the administrative error in the applicant’s DD Form 214 issued at the time of his discharge from the Army. As a result, the Board carefully considered all aspects of the applicant’s offenses and the true basis for his discharge from the Army. The Board concluded that trial by court-martial was warranted by the gravity of the offenses charged. Further, the Board found that conviction and discharge were effected in accordance with applicable law and regulations, and the bad conduct discharge adjudged appropriately characterizes the misconduct for which the applicant was convicted. Therefore, this Board finds that there is no basis for granting clemency in this case which would result in the upgrade of his bad conduct discharge to an honorable discharge.

7. This Board also reviewed the separation document now held by the applicant which shows that he was separated under the provisions of chapter 10 of Army Regulation 635-200 under other than honorable conditions. Based on the facts leading to the applicant’s separation from the Army, the Board found no basis to administratively correct or amend this document to show that he received an honorable discharge.

8. Finally, this Board finds that the overall merits of the case, including the latest submissions and arguments, are insufficient as a basis for this Board to reverse the decisions of the ABCMR panel which considered Docket Number AC92-07029 on 24 November 1993.

9. 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 either requirement.

10. 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

AAO_____ HOF_____ TEO_____ DENY APPLICATION



         Carl W. S. Chun

Director, Army Board for Correction
         of Military Records

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INDEX

CASE ID	AR2001065731
SUFFIX
RECON	This applies only to ADRB
DATE BOARDED	20020430
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	19891020
DISCHARGE AUTHORITY	AR 635-200, Chapter 10
DISCHARGE REASON	For the Good of the Service-in lieu of trial by court-martial
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	144.0000
2.
3.
4.
5.
6.