MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 20 August 2002
         DOCKET NUMBER: AR2002067733

         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. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Ms. Melinda M. Darby		Chairperson
Mr. Roger W. Able		Member
Mr. Curtis L. Greenway		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 honorable.

APPLICANT STATES: In effect, that he was a naïve young island boy from American Samoa when he enlisted in the Army in 1978 and during his 8 years of service he attained the rank of sergeant and received several commendations for his service. He goes on to state that he loved being a soldier and was eager to continue his career. Unfortunately, in 1985, while under the influence of alcohol and some confused peers, he made a terrible mistake that ultimately led to a court-martial and BCD. He was shocked at the outcome and was too embarrassed to return to Samoa for several years. He continues by stating that it has taken many years to put his life back together but he eventually married and started a business in 1993. In 1996, he expanded the business, doing much of the work himself. He further states that he has now leased his business and moved to Arizona with his wife and is attending college part-time. He also states that there has not been a day in which he does not regret what he did and has learned that he must live responsibly and be a contributing member of society. In support of his application he submits three third party letters of support, and copies of his evaluation reports.

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

He was born in American Samoa on 3 July 1959 and enlisted in Honolulu, Hawaii, on 1 February 1978, for a period of 3 years and training as an infantry indirect infantryman. He successfully completed his training and was transferred to Germany on 7 June 1978. He was advanced to the pay grade of E-3 on 1 December 1978.

On 23 May 1979, nonjudicial punishment (NJP) was imposed against him for being incapacitated for the proper performance of his duties due to his overindulgence in alcohol. His punishment consisted of a reduction to the pay grade of E-2 (suspended for 30 days) and extra duty.

He was advanced to the pay grade of E-4 on 1 October 1979 and reenlisted on 1 August 1980, for a period of 6 years, assignment to Fort Ord, California, and a selective reenlistment bonus.

He was promoted to the pay grade of E-5 on 26 October 1980 and departed Germany on 27 December 1980. He was transferred to Fort Ord for duty as an assistant gunner.

On 19 June 1981, NJP was imposed against him for leaving his post without being properly relieved. His punishment consisted of a reduction to the pay grade of E-4 (suspended for 6 months) and a forfeiture of pay.

He was again transferred to Germany on 28 June 1982 and on 28 March 1984, NJP was again imposed against the applicant. The specifics are not present in the available records; however, his records do show that he was reduced to the pay grade of E-4 on that date.

On 28 November 1984, the applicant’s commander notified him that he was considering imposing NJP against him for the wrongful use of marijuana on or about 2 October 1984. After consulting with counsel, the applicant demanded trial by court-martial.

On 7 December 1984, charges were preferred against the applicant for assaulting a noncommissioned officer on 6 December 1984, for the wrongful use of marijuana on 2 October 1984 and for wrongfully communicating a threat to injure another soldier on 6 December 1984.

The applicant entered into a pre-trial agreement in which he agreed to plead guilty to the charges against him in return for the convening authority not approving a sentence to exceed a BCD, 90 days confinement and a forfeiture of $413.00 per month for 6 months.

He was convicted by a special court-martial on 16 January 1985, based on his plea of guilty on all charges. He was sentenced to a reduction to the pay grade of E-1, a forfeiture of $413.00 for 6 months, confinement for 100 days and a BCD. He was transferred to Fort Ord to serve his confinement. The convening authority approved the findings and sentence on 4 March 1985.

On 28 June 1985, the United States Army Court of Military Review affirmed the findings and sentence as approved by the court-martial convening authority.

On 19 December 1985, he was discharged with a BCD, pursuant to a duly reviewed and affirmed special court-martial conviction. He had served 7 years, 8 months and 4 days of total active service and had 75 days of lost time due to confinement. His awards included the Army Achievement Medal (1st oak leaf cluster), the Army Commendation Medal, the Army Good Conduct Medal (2d award), the Army Service Ribbon, the Overseas Service Ribbon and the Expert Infantryman Badge. His records also show that he received letters of commendation on four occasions for being the best-prepared soldier during guard mount and on one occasion for being a member of the best mortar squad.

The applicant appealed his case to the United States Court of Military Appeals and his petition for a grant of review was denied on 10 January 1986.

The three third party statements submitted by the applicant with his application serve to applaud the applicant’s excellent work ethic and character.

Title 10, United States Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that the Board is not empowered to set aside a conviction. Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then 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. 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.

2. The type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case.

3. The applicant’s contentions and supporting documents have been noted by the Board. However, they are not sufficiently mitigating to warrant relief when compared to the seriousness of his offense and his overall record of service.

4. 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.

5. 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

__mmd__ __rwa___ __clg____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002067733
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/08/20
TYPE OF DISCHARGE	BCD
DATE OF DISCHARGE	1985/12/19
DISCHARGE AUTHORITY	SCM
DISCHARGE REASON	CM CONV
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 685	144.6800/A68.00
2.
3.
4.
5.
6.