MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            21 January 1999     
	DOCKET NUMBER:   AC98-13079
                                              AR1998012274

	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. Loren G. Harrell		Director	
	Mr. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Ms. Karen J. Newsome		Chairperson	
	Mr. Fred N. Eichorn		Member	
	Mr. John P. Infante		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)

APPLICANT REQUESTS:  That his dishonorable discharge be upgraded to honorable.

APPLICANT STATES:  In effect, that he desires to have his discharge upgraded and that it is something he should have done years ago but desires to do so at this time.  He further states that he had 2 years of prior honorable service, that he was unjustly denied permission to marry, that he paid back all of the money he stole, that he was young and in love at the time, that he stopped drinking shortly after discharge, that he has become involved in local organizations, that he is a good citizen, and that he believes that his discharge was too harsh.

EVIDENCE OF RECORD:  The applicant's military records were destroyed in the 1973 fire at the National Personnel Records Center which destroyed approximately 18 million service records.  However, information obtained from alternate sources show:

The applicant enlisted on 1 April 1954 and served until he was honorably discharged on 30 April 1956 for the purpose of immediate reenlistment.  He reenlisted on 1 May 1956.

In  August 1957, while serving in Panama (Canal Zone) in the rank of private first class, court-martial charges were preferred against the applicant for two periods of AWOL, uttering three bad checks on a closed account, housebreaking and larceny.   As a result of the charges, an investigation was initiated under the provisions of Article 32, UCMJ.

On 17 September 1957 the Article 32 investigation revealed that the applicant had received nonjudicial punishment on three separate occasions and that the applicant had explained that he had applied to marry a panamanian girl and after being delayed for 6 weeks it was forwarded and permission to marry was denied.  The applicant explained that he was upset and he began drinking a lot.  He then discovered that she was pregnant and he felt that he should be with her.  He didn’t have any money so he decided to break into the post exchange.  The applicant contended that he wouldn’t have had any problems had he been able to marry the girl.  The investigating officer recommended that the applicant be tried by a general court-martial.

Prior to his trial by court-martial, the applicant entered into a pre-trial agreement in which he offered to plead guilty to all charges and specifications in consideration that the convening authority approve no sentence in excess of a dishonorable discharge, total forfeitures, and confinement at hard labor for 18 months.  The offer was accepted by the convening authority.

The applicant was convicted by a general court-martial on 26 September 1957 of two specifications of being AWOL from 6 August to 12 August 1957 and from 18 August to 23 August 1957, of three specifications of uttering bad checks on a closed account, and two specifications of breaking and entering and larceny.  He was sentenced to be dishonorably discharged, to forfeit all pay and allowances, and to be confined at hard labor for 3 years.  The convening authority approved only so much of the sentence as provided for a dishonorable discharge, total forfeitures, and confinement at hard labor which was pursuant to the pre-trial agreement.  

On 25 October 1957 the Army Board of Board of Military Review affirmed the findings and sentence of the general court-martial convening authority.

Accordingly, on 25 March 1959 the applicant was dishonorably discharged pursuant to the sentence of a general court-martial. 

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.  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.

2.  The type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case.

3.  The applicant’s contentions have been noted by the Board and appear to be without merit.  The applicant entered into a plea bargain agreement and plead guilty to the charges against him at a trial by court-martial.  While he may now feel that he made the wrong decision, he should not be allowed to change his mind at this late date. 

4.  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 the aforementioned requirement.

5.   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___  ___jpi ___  __fe ____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-13079/AR1998012274	
SUFFIX		
RECON	 	
DATE BOARDED	1999/01/21	
TYPE OF DISCHARGE	DD	
DATE OF DISCHARGE	1959/03/25	
DISCHARGE AUTHORITY	GCM	
DISCHARGE REASON	GCM	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  105.0100		
2.		
3.		
4.		
5.		
6.