MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 12 August 2003
         DOCKET NUMBER: AR2002078915

         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
Mrs. Carolyn G. Wade		Analyst

The following members, a quorum, were present:

Mr. Ted S. Kanamine		Chairperson
Mr. William D. Powers		Member
Mr. Frank C. Jones, II		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 discharge be upgraded to honorable and that his reenlistment eligibility (RE) code be changed to RE-1.

APPLICANT STATES: In effect, that he believes he was unjustly discharged due to errors and misinterpretations of certain facts relating to his court-martial proceedings and sentence. The applicant cites three specific areas of concern as presumption of regularity, summary of proceedings, and the convening authority. He states that because of the wording of his sentence, as well as the errors admitted during mitigation (sic), he should have been granted a new trial. That did not happen and he believes justice has not been served. He states that the summary of proceedings identified two errors: 1) incorrect citing of the charge of conspiracy, and 2) judicial error. He also states that there was an error in interpreting the convening authority's sentence. He alleges command influence and an abuse of power in his court-martial proceedings. He states that he was a good soldier, that his use of alcohol impaired his judgment, and that he believes clemency is warranted. He states it is an injustice for him to continue to suffer from a bad conduct discharge 14 years later. In conclusion, he states that he now has a family and his family would benefit from an upgrade of his discharge.

In support of his application, he submits a 4-page attachment, dated 8 February 2000, detailing his issues; certificates of completion for various military training while on active duty; and letters of character references and training since his discharge from service.

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

On 10 May 1983, he enlisted in the Regular Army for a period of 3 years. Upon completion of all required military training, he was awarded military occupational specialty (MOS) 76C, Equipment Records and Parts Specialist, and was assigned to Germany.

On 1 May 1984, the applicant was promoted to private first class (PFC/E-3).

On 8 December 1984, the applicant and three other soldiers, all of whom had been drinking, conspired to rob, and subsequently did rob, a hotel in Stuttgart, Germany. After the robbery, they divided the money amongst themselves.

On 27 February 1985, the applicant was charged with one specification each of conspiracy to commit robbery and robbery. He was also charged with three additional charges: 1) stealing a change purse and currency valued at about 300.00 Deutsche marks; 2) conspiracy to steal currency of some value; and 3) breaking restriction. Although he pled not guilty to each charge, a general

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court-martial, on 5 June 1985, convicted him of conspiracy to commit robbery and robbery. He was found not guilty of the three additional charges. He was sentenced to a bad conduct discharge (BCD), forfeiture of all pay and allowances for 3 years, and confinement at hard labor for 3 years.

On 7 August 1985, the sentence was approved as adjudged and ordered executed, except for the part pertaining to the BCD. He was credited with 91 days' pre-trial confinement.

On 23 May 1986, the Court of Military Review found that there was a significant danger of prejudice and corrected the error by reassessing the sentence. The findings of guilty were affirmed. However, the sentence was reassessed on the basis of the applicant's entire record and the error noted. The court affirmed only so much of the sentence that provided for a BCD, forfeiture of all pay and allowances, and 24 months' confinement. The applicant was confined at the United States Disciplinary Barracks, Fort Leavenworth, Kansas.

On 12 June 1986, the applicant petitioned the United States Court of Military Appeals to review his court-martial conviction.

On 18 August 1986, the applicant was released from confinement and placed on indefinite excess leave pending appellate review of his case.

On 1 August 1986, the Court of Military Appeals denied review of the case, and on 19 September 1986, the BCD was ordered executed.

On 10 October 1986, the applicant was discharged under the provisions of Army Regulation 635-200 with a BCD. He was credited with 1 year, 10 months, and 19 days of creditable military service, and 1 year, 2 months, and 4 days of lost time prior to expiration term of service (ETS) and 4 months and 8 days of lost time after normal ETS. His DD Form 214 reflects he was discharged as a result of court-martial with an RE code of RE-4.

Army Regulation 635-200, then in effect, stated that an enlisted person would be discharged with a BCD pursuant only to an approved sentence of a general or special court-martial imposing a BCD.

Pertinent Army Regulations provide that, prior to discharge or release from active duty, individuals will be assigned RE codes based on their service records or the reason for discharge. Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve. Chapter 3 of that regulation prescribes basic

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eligibility for prior service applicants for enlistment. That chapter includes a list of Armed Forces RE codes. RE-4 applies to persons discharged with a dishonorable discharge or a BCD.

Army Regulation 635-5-1, Separation Program Designator (SPD) Codes, contains narrative reasons for discharge, the appropriate SPD codes for those narrative reasons, and a cross-reference to the applicable RE code. Soldiers separated for the purpose of a BCD are issued an RE code of RE-4.

Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, United States Code, Section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records is not empowered to change a discharge due to matters which should have been raised in the appellate process. The Board 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. 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.

2. 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.

3. The applicant's contentions relate to evidentiary and procedural matters which were finally and conclusively adjudicated in the court-martial appellate process, and furnish no basis for recharacterization of the discharge.

4. The evidence of record clearly shows that the applicant was adjudged guilty by court-martial and that the convening authority approved the sentence. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed. The Board finds no reason to grant clemency in this case.

5. According to Army Regulation 635-5-1, a soldier separated with a BCD will be given an RE code of RE-4. Therefore, the RE code of RE-4 given the applicant at the time of discharge is correct.

6. 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

__tsk___ __wdp___ __fcj___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002078915
SUFFIX
RECON
DATE BOARDED	20030812
TYPE OF DISCHARGE	BCD
DATE OF DISCHARGE	19861010
DISCHARGE AUTHORITY	AR 635-200, Chap 11. . . . .
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	100.0200
2.
3.
4.
5.
6.