MEMORANDUM OF CONSIDERATION


         IN THE CASE OF
        


         BOARD DATE: 30 July 2002
         DOCKET NUMBER: AR2002069967

         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. Paul A. Petty		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Thomas Lanyi		Member
Ms. Karen A. Heinz		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: In effect, that his bad conduct discharge be upgraded to a general discharge under honorable conditions.

APPLICANT STATES: In effect, that he served 7½ years before his discharge. Prior to his discharge, he had mental health concerns and was prescribed Ritalin for his illness. He now has Schizophrenia. He requests consideration of his positive accomplishments before his last year of service and his mental illness as mitigating circumstances in support of granting an upgrade of his discharge. He provides copies of his civilian health counseling service from 2000 and 2001 which shows that he was treated as an outpatient during that period with prescription medication for polysubstance abuse (cocaine and alcohol) with related psychosis, depression, and antisocial and impulsive personality disorder.

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

He enlisted in the Regular Army on 3 July 1990, for a 4 year term of service. He completed infantry training and was assigned to Germany. On 15 March 1991, he received a United States Military Community, Heidelberg, Certificate of Achievement for outstanding achievement for service as a member of the security force in the community. He advanced to the rank of specialist, pay grade E-4, on 1 September 1992. On 15 February 1993, he was awarded a drivers badge for 12 months and 8,000 miles accident free driving. On 21 June 1993, he was awarded the Good Conduct Medal. On 10 November 1993, he reenlisted for a term of 4 years of service for an overseas reenlistment option to be assigned to Korea. He was assigned in Korea on 18 April 1994. On 11 May 1994, he was awarded a 17^th Aviation Brigade Certificate of Achievement for outstanding support during an evaluation. On 17 March 1995, he was awarded an Army Achievement Medal for outstanding achievement during squad evaluations.

On 9 May 1995, he was reassigned to Fort Campbell, Kentucky. On 4 August 1995, he was awarded the Air Assault Badge. On 12 July 1996, he was awarded a second Good Conduct Medal. On 14 November 1996, he received punishment under Article 15, Uniformed Code of Military Justice (UCMJ), for disobeying an order issued by a senior noncommissioned officer. He was reduced to private first class (pay grade E-3), given 14 days extra duty, and a suspended forfeiture of pay.

On 2 January 1997, the applicant was flagged pending a court-martial. On
5 February 1997, the applicant was charged with violation of UCMJ Article 121, larceny of $3,100 in government funds by entering into and remaining in a sham marriage solely for the purpose of obtaining increased pay and benefits; and UCMJ Article 86, being absent without leave (AWOL) 20-23 December 1996.


The general court-martial was conducted on 19 March 1997, at Fort Campbell. The applicant voluntarily pleaded guilty to both charges and waived his right to an Article 32 investigation. He was counseled on this decision by his defense counsel and the court-martial military judge. The applicant made a sworn statement that he entered into a marriage in name only so he could move out of the barracks and receive extra pay and so that the woman he married could get medical benefits. He married the woman on 18 April 1996. The woman gave a sworn statement that she received no support from the applicant and left (about the first week of May) to join her boyfriend with whose child she was 4 months pregnant and with a young son. The applicant's supervisor testified that the applicant's duty performance was marginal to poor, that he lacked motivation, and that the applicant admitted to him that he abused drugs. (It is noted that the testimony on drug use was challenged by the applicant and his counsel but the US Army Court of Criminal Appeals determined that admitting the testimony was not a legal error and that it was admissible.)

The applicant was found guilty of the larceny charge and of a lesser charge of failure to report to the appointed place of duty. In recommending the sentence to the commanding general, the applicant's awards and decorations and period of service were specifically noted. The commanding general considered the results of the trial, the recommendations of the Staff Judge Advocate, and the applicant's military record in making his decision on the sentence. The commanding general approved the sentence of reduction to private (pay grade E-1), confinement for 170 days, forfeiture of all pay and allowances, and a bad conduct discharge. According to the Manual for Courts-Martial, the maximum punishment for violation of the greater charge, Article 121, larceny of more than $100 of government funds, is a dishonorable discharge, 10 years confinement, and total forfeiture. On 19 March 1997, the applicant was confined by military authorities in the Regional Correctional Facility at Fort Knox, Kentucky. He was released from confinement on 19 June 1997, and placed on excess leave. On 31 October 1997, the US Army Court of Criminal Appeals affirmed the findings and sentence of the applicant's general court-martial. On 12 June 1998, the applicant was discharged with a bad conduct discharge.

According to US Code, Title 10, Section 1552 (f), the Army Board for Correction of Military Records may not disturb the finality of a court-martial, including retrying elements of or arguments presented before a court-martial or appeals to a court-martial, or change the findings of a court-martial. The Board may only consider clemency on the sentence when adequate evidence is submitted to warrant such consideration.





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 applicant was correctly and justly discharged with a bad conduct discharge as a result of a sentence by a general court-martial. According to law, this Board cannot disturb the finality of a court-martial. The Board may consider a discharge upgrade based on clemency. The applicant requested clemency based on his pre court-martial service record. It was noted that his pre court-martial service record was considered in the decision of the court-martial sentence and the applicant was given a sentence of lesser consequence than the possible maximum sentence of a dishonorable discharge and at least
10 years confinement for his violation of the UCMJ. There is no evidence that warrants any further clemency.

2. The applicant's contention that his conduct leading to his court-martial and bad conduct discharge were the result, in part, of a mental illness is not supported by the facts in the record or any other evidence. His post service medical records for the period 2000 through 2001 show that his psychosis was related to polysubstance (cocaine and alcohol) abuse. This evidence does not support the applicant's request for a discharge upgrade based on clemency nor does it support his contention of mental illness while in the service contributing to his violation of the UCMJ.

3. 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

__ao___ __tl___ ___kh_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002069967
SUFFIX
RECON
DATE BOARDED	20020730
TYPE OF DISCHARGE	BCD
DATE OF DISCHARGE	19980612
DISCHARGE AUTHORITY	AR 635-200, Chap 3, Sec IV
DISCHARGE REASON	General Court-Martial
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.02 – Reason and Authority
2.
3.
4.
5.
6.