MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 29 July 2003
         DOCKET NUMBER: AR2003086025

         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. Luis Almodova		Analyst

The following members, a quorum, were present:

Ms. Margaret K. Patterson		Chairperson
Mr. Walter T. Morrison		Member
Mr. Thomas E. O’Shaughnessy		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 BCD (Bad Conduct Discharge) be upgraded to Honorable.

APPLICANT STATES: In effect, that he was court-martialed and was found guilty of the charges but that the evidence was not present at the time of the court-martial for the verdict. The applicant submits a copy of his DD Form 214, Certificate of Release or Discharge from Active Duty, in support of his request.

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

The applicant enlisted in the US Army Reserve for 6 years on 21 October 1977. He enlisted in the Regular Army for 3 years on 10 January 1978. He underwent basic combat training at Fort Jackson, South Carolina and successfully completed advanced individual training at Fort Benning. Georgia. On completion of all training, he was awarded the military occupational specialty (MOS), 11B, Light Weapons Infantryman.

On 10 August 1979, the applicant received an Article 15 under the provisions of the Uniform Code of Military Justice (UCMJ) for being disrespectful towards his superior commissioned officer on 6 August 1979. The imposed punishment was a forfeiture of $70.00 (forfeiture of $50.00 was suspended until 5 September 1979) and fourteen days extra duty. The applicant did not appeal the punishment.

On 30 July 1980, the applicant was discharged for the purposes of immediate reenlistment in the Regular Army. On 31 July 1980, the applicant reenlisted for three years in the Regular Army for training of choice in the MOS 95B, Military Police. According to Item 17 (Civilian Education and Military School), DA Form 2-1, Personnel Qualification Record, Part II, the applicant failed to complete training leading to award of the MOS 95B.

The applicant’s record documents that the highest rank and pay grade he held on active duty was Specialist 4, E-4. This rank was attained on 11 January 1980. The applicant's record contains no documented acts of valor, achievement, or service warranting special recognition.

On 3 July 1981, while undergoing advanced individual training for the MOS 95B, the applicant received an Article 15 under the provisions of the UCMJ for failing to go at the time prescribed to his appointed place of duty, accountability

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formation, on 28 June 1981. The imposed punishment was a forfeiture of $157.00 (forfeiture of $80.00 was suspended for one month); seven days extra
duty; and restriction to the company area for fourteen days. The applicant did not appeal the punishment.

On 22 June 1982, the applicant received an Article 15 under the provisions of the UCMJ for violating a lawfully given order, an order it was his duty to obey, by drinking some amount of beer during duty hours. The imposed punishment was a reduction to the rank and pay grade, Private First Class, E-3 (suspended for 60 days); forfeiture of $100.00; fourteen days extra duty; and restriction to the company area, dining facility, and chapel for fourteen days. The applicant did not appeal the punishment.

The applicant's commander submitted a recommendation that the applicant be barred from reenlistment on 27 January 1983. The approval authority, a Lieutenant Colonel, approved the bar to reenlistment on 1 February 1983.

The applicant was arraigned and tried by a special court-martial. On 11 March 1983, the applicant was convicted of maliciously conveying false information, a bomb threat, on 16 October 1982. He was sentenced to be reduced to Private,
E-1; forfeiture of $382.00 per for six months; and to be confined at hard labor for one month; and to be discharged from the Army with a bad conduct discharge. The sentence was adjudged on 11 March 1983 and approved on 9 June 1983.

The applicant was placed in confinement on 11 March 1983 and was released from confinement on 6 April 1983. Effective 28 June 1983, he was placed on excess leave pending appellate review.

On 7 March 1984, the sentence was affirmed pursuant to Article 66 of the Manual for Courts Martial in Special Court-Martial Orders Number 66, Headquarters, US Army Infantry Center and Fort Benning, Fort Benning, Georgia. Article 71(c) having been complied with, the sentence was ordered duly executed. That portion of the sentence pertaining to confinement had been served.

On 4 May 1984, the US Army Court of Military Review found the approved findings of guilty and the sentence correct in law and fact and having determined on the basis of the entire record that they should be approved; such findings of guilty and the sentence were affirmed.

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The applicant was discharged with a bad conduct discharge on 23 August 1984 in the rank and pay grade, Private, E-1, under the provisions of Army Regulation 635-200, chapter 3, section IV, as a result of court-martial. The applicant had been retained in service for 363 days for the convenience of the Government.

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, 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.

Title 10, United States Code, section 1552, as amended does not permit any redress by this Board which would disturb the finality of a court-martial conviction. The Board is empowered to address the punishment and/or the characterization of service resulting from a court-martial conviction. The Board may elect to change the punishment and/or the characterization of service 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. The Board concluded that trial by court-martial was warranted by the gravity of the offenses charged, discharge proceedings were accomplished in accordance with law and regulations applicable at the time, and there is no indication of procedural errors, which would tend to jeopardize the applicant's rights. The discharge appropriately characterizes the misconduct for which the applicant was convicted and with the applicant's overall record of service.

2. 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.

3. The Board noted the applicant's desire to have his bad conduct discharge upgraded. The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the punishment imposed. After reviewing the applicant service record, the Board found no basis upon which to grant clemency and an upgrade of the applicant's discharge.

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4. 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

__mkp___ __wtm __ ___teo __ DENY APPLICATION

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

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INDEX

CASE ID	AR2003086025
SUFFIX
RECON
DATE BOARDED	2003/07/29
TYPE OF DISCHARGE	BCD
DATE OF DISCHARGE	1984/08/23
DISCHARGE AUTHORITY	AR 635-200, chapter 3, and SCMO.
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	A68.00
ISSUES 1. 360	144.0000
2. 675	144.6800
3.
4.
5.
6.