MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 3 July 2003
         DOCKET NUMBER: AR2003086193

         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. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor		Chairperson
Ms. Kathleen A. Newman		Member
Mr. Patrick H. McGann		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 record be corrected to show he was honorably discharged and that he receive financial compensation for the three years he waited to be discharged.

APPLICANT STATES: In effect, that his signature on the pre-trial agreement in his record is a forgery and the name of his legal counsel is incorrect. He also claims that the provisions of the pre-trial agreement were different than what he agreed to. In support of his application, he provides a copy of the agreement and related documents that contain his hand written notes outlining what he believes to be in error.

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

He entered active duty on 16 September 1981, and was trained and
served in military occupational specialty (MOS) 75B (Personnel Administration Specialist). His record documents no acts of valor, significant achievement, or service warranting special recognition.

The applicant’s record does reveal an extensive disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following two occasions for the offenses indicated: 3 June 1982, for conduct of such a nature as to bring discredit upon the service; and 12 April 1983, for stealing two cassette tapes from the Post Exchange.

On 13 May 1983, the applicant offered to plead guilty to the charges against him if the convening authority agreed to approve only so much of the sentence as provided for a bad conduct discharge (BCD), forfeiture of two-thirds pay for three months, and confinement at hard labor for three months.

On 22 May 1983, a special court-martial (SPCM) found the applicant guilty of eight charges containing 26 specifications of violating Articles 80, 86, 90, 95, 121, and 123a of the UCMJ. This included the offenses of attempted larceny; breaking arrest and resisting apprehension; larceny by check; making and uttering bad checks; failure to repair; and disobeying a lawful order. The resulting sentence included confinement at hard labor for five months, forfeiture of $382.00 per month for five months, and to be discharged with a BCD.

On 18 July 1983, in SPCM Orders Number 2, published by Headquarters, United States Army Japan, the SPCM convening authority approved only so much of the sentence that provided for a BCD, confinement at hard labor for three months, and forfeiture of $382.00 per month for three months.

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On 26 March 1984, the United States Army Court of Military Review set aside the action of the convening authority and returned the record of trial to The Judge Advocate General (JAG) for a new review by the same or a different convening authority.

On 29 November 1984, in compliance with the directive of the United States Army Court of Military Review, the SPCM convening authority at Fort Riley, Kansas, where the applicant was then assigned, took the following action on the applicant’s original record of trial: the findings of guilty as to all Specifications of Charge IV, and the findings of guilty as to Specifications 1 and 2 of additional charge IV were disapproved and dismissed; the findings of guilty as to all other specifications and charges were approved. The SPCM also approved only so much of the sentence as provided for a BCD and forfeitures of $382.00 pay per month for three months.

On 29 January 1985, the United States Army Court of Military Review considered the applicant’s case pursuant to Article 66 of the UCMJ following the completion of a new post-trial review and action by the new convening authority. It affirmed the findings of guilty and the sentence after determining that such findings were correct in law and fact based on its review of the entire record.

On 13 August 1985, the modified findings of guilty and the modified sentence having been affirmed by the United States Army Court of Military Review and the provisions of Article 71a of the UCMJ having been complied with, the sentence was ordered to be duly executed. On 26 August 1985, the applicant was discharged accordingly.

The separation document (DD Form 214) issued to the applicant confirms that he received a BCD under the provisions of chapter 3, Army Regulation 635-200, by reason of court-martial sentence. This document also confirms that at the time of is separation, he had completed a total of 3 years, 8 months, and 15 days of creditable active military service, and had accrued a total of 85 days of time lost.

On 21 September 1987, the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his BCD. The only issue he raised in this application was that his use of alcohol and drugs were mitigating factors for the offenses he committed, and which rendered him unsuitable for further service. He did not raise or address the issue of the validity of his pre-trial agreement at that time.

On 13 October 1987, the ADRB determined that the applicant’s discharge accurately reflected the overall quality of his service. It found that his discharge was both proper and equitable, and it voted to deny his request to upgrade his discharge.
Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 3, Section IV, establishes policy and procedures for separating members with a dishonorable or bad conduct discharge; and provides that a soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial; and that the appellate review must be completed and the affirmed sentence ordered duly executed.

Title 10 of the United States Code, section 1552 as amended does not permit any redress by this Board of the finality of a court-martial conviction and empowers the Board to only change a discharge if clemency is determined to be appropriate.

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 carefully considered the applicant’s allegation that the pre-trial agreement he entered into was flawed, that the name of his counsel on the document is incorrect, and that his signature on the document was forged. However, it finds no evidence to support these assertions. Further, the Board takes special note of the fact that the applicant has never previously raised this issue, either in the court-martial review process or in his application to the ADRB.

2. By law, any redress by this Board of the finality of a court-martial conviction is prohibited. The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the punishment imposed.

3. The evidence of record confirms that the applicant’s trial by court-martial was warranted by the gravity of the offenses for which he was charged. Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.

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

__KN___ __RO__ __PM__ DENY APPLICATION

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

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INDEX

CASE ID	AR2003086193
SUFFIX
RECON
DATE BOARDED	2003/06/DD
TYPE OF DISCHARGE	BCD
DATE OF DISCHARGE	1985/08/26
DISCHARGE AUTHORITY	AR 635-200
DISCHARGE REASON	Court-Martial
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 189	110.0000
2.
3.
4.
5.
6.