MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 5 November 2002
         DOCKET NUMBER: AR2002077820

         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:

Mr. Melvin H. Meyer		Chairperson
Mr. Eric N. Andersen		Member
Mr. John T. Meixell		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 in the form of an honorable discharge be granted. He also requests that his narrative reason for separation be changed to “Emotional Breakdown.”

APPLICANT STATES: In effect, that he was defiant and “unsoldier like” due to his marijuana addiction and drinking problem he obtained while in the service. He contends that youth played a part in dealing with his problems in the Army and that he was not ready mentally to follow commands.

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

The applicant entered active duty on 8 July 1992 for a period of 2 years and
22 weeks. He successfully completed basic and advanced individual training and was transferred to Korea for duty as an equipment/record and parts specialist. He served in Korea from 9 December 1992 through 8 December 1993.

The applicant’s DA Form 2-1 (Personnel Qualification Record) shows that he was reduced from private first class to private effective 29 August 1994. No other details are contained in the available records.

On 16 December 1994, the applicant was convicted consistent with his pleas by a general court-martial of larceny (value less than $100), breaking restriction, being disrespectful in language towards a superior noncommissioned officer, violating a lawful general regulation, communicating a threat to injure and communicating a threat to kill. He was sentenced to forfeit $500 pay per month for 3 months, to be confined for 3 months and to be discharged from the service with a bad conduct discharge. On 16 February 1995, the convening authority approved the sentence.

On 6 April 1995, the United States Army Court of Criminal Appeals affirmed the findings of guilty and the sentence. The bad conduct discharge was ordered executed on 13 November 1995.

Accordingly, the applicant was discharged with a bad conduct discharge on
12 December 1995 under the provisions of Army Regulation 635-200, chapter 3, as a result of court-martial. He had served 3 years, 2 months and 12 days of total active service with 82 days lost due to confinement (16 December 1994 through 8 March 1995) and 279 days excess leave (9 March 1995 to
12 December 1995).

There is no evidence in the available records which shows the applicant was diagnosed as drug or alcohol dependent.

Item 28 (Narrative Reason for Separation) on the applicant’s DD Form 214 shows the entry, “COURT-MARTIAL, OTHER.”

Item 25 (Separation Authority) on the applicant’s DD Form 214 shows the entry, “AR [Army Regulation] 635-200, CHAP [Chapter] 3, SEC [Section] IV.”

Item 26 (Separation Code) on the applicant’s DD Form 214 shows the entry, “JJD.” Army Regulation 635-5-1 (Separation Program Designator Codes), states the reason for discharge based on separation code “JJD” is “Court-Martial, Other” and the regulatory authority is Army Regulation 635-200, Chapter 3, Section IV.

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, 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.

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.

Army Regulation 635-5-1 (Separation Program Designator Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.

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 contention that he was defiant and “unsoldier like” due to his marijuana addiction and drinking problem he obtained while in the service. However, there is no evidence of record available to the Board, and the applicant has provided no evidence, to support this contention.

2. The applicant’s contention that he was young at the time is not sufficiently mitigating to warrant relief. The Board notes that the applicant was 21 years of age when he committed the offenses.

3. The applicant’s contention that he was not ready mentally to follow commands is not supported by the evidence of record. Evidence of record shows the applicant had completed over 2 years of military service prior to a reduction in rank effective 29 August 1994.

4. The Board reviewed the applicant’s record of service which included one general court-martial conviction for larceny (value less than $100), breaking restriction, being disrespectful in language towards a superior noncommissioned officer, violating a lawful general regulation, communicating a threat to injure and communicating a threat to kill 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.

5. 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.

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

7. 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.

8. The narrative reason for separation used in the applicant’s case is correct and was applied in accordance with the applicable regulations. Therefore, there is no basis for granting the applicant’s request to change his narrative reason for separation on his DD Form 214.

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 this 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

MHM____ ENA____ JTM_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002077820
SUFFIX
RECON
DATE BOARDED	20021105
TYPE OF DISCHARGE	BCD
DATE OF DISCHARGE	19951212
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.