MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 29 October 2002
         DOCKET NUMBER: AR2002077819

         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. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Ms. Karol A. Kennedy		Chairperson
Mr. Thomas A. Pagan		Member
Ms. Barbara J. Lutz		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 clemency be granted in the form of a discharge upgrade to entry level separation or uncharacterized.

APPLICANT STATES: In effect, that he is seeking another chance to serve his country by joining the Army National Guard and becoming a successful soldier. He contends that he would like to make amends for his actions the first time he joined the military. He goes on to state that he stole a pair of night vision goggles while on guard duty, that he gave them to another soldier and he never saw them again. However, a month later he saw a reward poster for the goggles and he got scared. He went to the other soldier and asked for goggles back; however, the soldier said he had thrown them away. Actually, the soldier had kept them to sell for personal gain. When he sold them to undercover agents he told them that the applicant was the one who stole the goggles. He contends that when they came and knocked on his door he confessed and cooperated fully. The judge sentenced him to three years of confinement and a bad conduct discharge. He states that he has had over a decade to think about his irresponsible actions and the consequences he had to suffer. In support of his application, he submits a letter of explanation and two character reference letters.

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

The applicant enlisted on 6 February 1990 for a period of 4 years. He successfully completed basic training and advanced individual training and was transferred to Germany for duty as a tank system mechanic.

On 26 May 1992, the applicant was convicted consistent with his pleas by a general court-martial of conspiracy to commit larceny of military property (value of about $12,300) and larceny of military property (value of about $12,300). He was sentenced to forfeit all pay and allowances, to be confined for 30 months, to be reduced to E-1 and to be discharged with a bad conduct discharge. On 7 July 1992, the convening authority approved only so much of the sentence as provides for a bad conduct discharge, forfeiture of all pay and allowances, confinement for 24 months, and reduction to E-1.

On 17 February 1993, the United States Army Court of Military Review affirmed the findings of guilty and the sentence. The bad conduct discharge was ordered executed on 14 November 1994.

Accordingly, the applicant was discharged with a bad conduct discharge on
22 November 1994 under the provisions of Army Regulation 635-200, chapter 3, paragraph 3-11, as a result of court-martial. He had served 2 years, 3 months and 17 days of total active service.



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.

Section 1552(f), Title 10, United States Code states that the ABCMR 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.

Army Regulation 635-200, chapter 11, establishes policy and prescribes procedures for separating members because of unsatisfactory performance or conduct (or both) while in an entry level status. It states, in pertinent part, that
separation under this chapter applies to soldiers who are in an entry level status and, before the date of the initiation of separation action, have completed no more than 180 days of continuous active duty and have demonstrated that they
cannot or will not adapt socially or emotionally to military life. Entry level status is defined as the first 180 days of continuous active duty. It further states that the character of service for members separated under the provisions of this chapter will be uncharacterized.

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. Whenever there is doubt, it is to be resolved in favor of the individual.

Army Regulation 635-200, paragraph 3-7, provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently
meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the soldier’s separation specifically allows such characterization.

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 considered the applicant’s request that his bad conduct discharge be changed to entry level separation or uncharacterized. However, evidence of shows that the applicant had served 15 months of military service prior to committing the offenses; therefore, he was not in an entry level status. Based on the foregoing, there is no basis for granting the applicant’s request.

2. The Board considered the two character reference letters provided in support of the applicant’s re-entry into the Army National Guard. However, good post service conduct alone is not a basis for upgrading a discharge.

3. The Board reviewed the applicant’s record of service which included one general court-martial conviction for conspiracy to commit larceny of military property valued at $12,300 and stealing military property valued at $12,300 and determined that his quality of service did not meet the standards of acceptable conduct and performance for Army personnel. Therefore, the Board determined that clemency in the form of an honorable discharge was not warranted in this case.

4. The Board also determined that the seriousness of the offenses for which the applicant received a general court-martial conviction were too serious to grant clemency in the form of a general discharge.

5. The applicant’s administrative separation was accomplished in compliance with applicable regulations.

6. The applicant has failed to show through the evidence submitted with his application or the evidence of record that the actions taken in his case were in error or unjust.

7. 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.

8. 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

KAK____ TAP____ BJL_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002077819
SUFFIX
RECON
DATE BOARDED	20021029
TYPE OF DISCHARGE	BCD
DATE OF DISCHARGE	19941122
DISCHARGE AUTHORITY	AR 635-200 Chapter 3
DISCHARGE REASON	As a result of court-martial
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.0200
2.
3.
4.
5.
6.