MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           16 December 1998                   
	DOCKET NUMBER:   AC98-11157
				   AR1999021195

	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. William Blakely		Analyst	

  The following members, a quorum, were present:

	Mr. Ernest M. Willcher		Chairperson	
	Ms. Lana E. McGlynn		Member	
	Mr. Carol Jo Suiter		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 bad conduct discharge (BCD) be upgraded to a general discharge.

APPLICANT STATES:  That his BCD was unjust and based upon one isolated incident during his term of enlistment.

EVIDENCE OF RECORD:  The applicant's military records were lost or destroyed in the National Personnel Records Center fire of 1973.  Information herein was obtained from the record of his trial by court-martial and from reconstructed personnel records.

The applicant enlisted in the Army on 22 July 1948 for a period of 3 years.
While assigned to Germany he received company punishment on four occasions and had two court-martial convictions.

On 13 March 1951 the applicant was convicted by a special court-martial for wrongful possession of a pass with the intent to defraud and willful disobedience of a lawful order of an NCO.  The evidence shows that he was apprehended by the Military Police (MP) in a Nurnberg gasthaus at 1615 hours.  When asked for his pass, he handed the MP a pass with another soldier’s name on it.  Also, on 19 February 1951, his platoon sergeant ordered him to “get his helmet and his pack and fall out.”  The applicant said he wouldn’t.  

The applicant pled guilty to the charges and specifications and was found guilty.  He was sentenced to forfeiture of $60.00 pay per month for 6 months, confinement at hard labor for 6 months, and a BCD.  His previous court-martial convictions and company punishments were considered at the time of sentencing.  

The court-martial convening authority approved only so much as the sentence as provided for a BCD, forfeiture of $58.00 pay per month for 6 months, and 6 months confinement.  

On 19 April 1951 the Board of Review examined the record of trial and found it to be legally sufficient to support the findings of guilty and the sentence, as modified by the convening authority.  The applicant was separated from the Army on 
7 August 1951 with a BCD.

The maximum punishment the applicant could have received was 6 months confinement, forfeiture of $58.38 per month for 6 months, and a BCD. 

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 evidence of records does not support the applicant’s contention that his BCD was based upon one isolated incident.  The Board notes that the applicant was convicted by two courts-martial and received four company punishments prior to his conviction by special court-martial which resulted in a BCD.  

3.  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

____X____  ____X____  ____X____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.