MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:         

	BOARD DATE:            17 December 1998 
	DOCKET NUMBER:   AC98-12429

	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	
	Ms. Wanda L. Waller		Analyst	

The following members, a quorum, were present:

	Ms. Karen L. Wolff		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Kenneth L. Wright		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 be upgraded to honorable.  

APPLICANT STATES:  In effect, that he was not given due process under the Uniform Code of Military Justice (UCMJ), that he was “railroaded” by the court-martial proceedings, and he did not commit the offenses for which he was accused.  In support of his application, he submits a letter of explanation in which he contends he was not given due process or an opportunity to fully and adequately explain his actions at his nonjudicial punishment or general court-martial.  He also submits a letter of commendation for outstanding performance on flag detail during the period 16 – 31 August 1980; two certificates of training and one certificate of appreciation.  

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

At age 21, the applicant entered active duty on 27 May 1980 for a term of
3 years.  He successfully completed basic and advanced individual training and served as a field artillery radar crew member.   

Nonjudicial punishment was imposed against the applicant on 1 March 1980 for communicating a threat to injure his superior warrant officer and using disrespectful language to his superior warrant officer.   His punishment consisted of a reduction to the pay grade of E-1, forfeiture of $200 pay per month for
2 months, and correctional custody for 30 days.  

The applicant essentially pled guilty to charges against him (with exception) and was convicted by a general court-martial on 15 June 1983 of unlawful entry with intent to commit larceny and larceny of personal property.  He was sentenced to a bad conduct discharge, reduction to the pay grade of E-1, forfeiture of all pay and allowances, and confinement at hard labor for 9 months.  

On 18 August 1983, the convening authority approved the sentence; however, he suspended that portion of the sentence requiring confinement in excess of
6 months.  The Court of Military Review affirmed the findings and sentence on
25 July 1984. 

Accordingly, the applicant was discharged pursuant to the sentence of a 
court-martial conviction on 16 August 1984.  He was issued a Bad Conduct Discharge Certificate.  He served 3 years, 1 month, and 14 days of total active service and had 64 days lost time due to confinement. 

A review of the available record fails to reveal that the applicant was not afforded due process under the UCMJ.

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 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.

2.  The applicant was afforded the opportunity to assert his innocence at 
court-martial and he has failed to show that the court-martial proceedings were not conducted in accordance with law and regulations applicable at the time or that he was denied due process.

3.  The applicant’s contention that he did not commit the offenses for which he was accused appears to be without merit.  The evidence clearly shows he pled guilty to the charges against him at trial by a general court-martial. 

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

___mm__  ___klw __  __klw ___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-12429	
SUFFIX		
RECON	 	
DATE BOARDED	1998/12/17	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	1984/08/16	
DISCHARGE AUTHORITY	GCM  	
DISCHARGE REASON		
BOARD DECISION	NC	
REVIEW AUTHORITY		
ISSUES         1.  A91.06		
2.		
3.		
4.		
5.		
6.