MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:    

	BOARD DATE:            29 April 1999                  
	DOCKET NUMBER:   AR1998007881

	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. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Ms. Ann M. Campbell		Chairperson	
	Mr. Edwin S. Castle		Member	
	Mr. Cristopher J. Prosser		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: In effect, reconsideration of his original application for upgrading of his under other than honorable conditions (UOTHC) discharge.  The applicant has provided copies of his separation documents and a letter of request, which are attached.  The original Memorandum of Consideration is not available and, therefore, the case is reviewed de novo. 

APPLICANT STATES: That he desires to have his discharge upgraded.  He now desires to work within a police department, which requires a discharge under honorable conditions.

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

The applicant enlisted in the Regular Army on 1 November 1965.  He completed his required training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  He was advanced to pay grade E-3 effective 26 January 1967,

On 11 March 1966, he was convicted by a summary court-martial of being absent without leave (AWOL) for the period 22 February to 2 march 1966.  His sentence included a forfeiture of pay and hard labor without confinement for      30 days.

On 1 September 1966, he was convicted by a summary court-martial of being AWOL for the period 14 July to 6 August 1966.  His sentence included a reduction to pay grade E-1 and a forfeiture of pay.

On 23 March 1967, he accepted non-judicial punishment under Article 15, Uniform Code of Military Justice, for disobeying a lawful order on 23 March 1967. His punishment included a reduction to pay grade E-2 and a forfeiture of pay.

On 26 September 1973, his commander preferred court-martial charges for AWOL for the periods 19 September 1967 to 28 August 1973 and 27 June to    14 August 1967.

On 8 November 1973, he was convicted by a general court-martial for the above offenses.  His sentence included a bad conduct discharge, forfeiture of all pay and allowances, confinement at hard labor for 5 months and reduction to pay grade E-1.

On 21 March 1974, the Army Court of Military Review affirmed the findings of guilty and the sentence.

On 7 May 1974, the sentence was order executed.

On 29 May 1974, he was separated with an UOTHC discharge under Army Regulation 635-200, chapter 11, as a result of a court-martial.  His Report of Separation indicates he had 1 year, 6 months and 4 days of creditable service and 2,580 days of lost time.

On 20 October 1976, this Board denied the applicant’s request for upgrade of his discharge.  The Board determined that his conviction by a general court-martial and his bad conduct discharge were proper under the laws and regulations in effect and the evidence failed to show failure of counsel to adequately defend him or a lack of a fair trial.  There was no material error or injustice in his case.

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 were appropriate considering the applicant’s record of misconduct and seriousness of the offense for which he was convicted.

3.  The statutory authority under which this Board was created (Title 10, United States Code, section 1552, as amended) precludes any act by this Board which would disturb the finality of a general court-martial conviction.

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

AMC____  ESC ____  CJP ____ DENY APPLICATION

						Loren G. Harrell
						       Director
CASE ID	AR1998007881	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	1999 April 29	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR 635-200.  .  .  .  .  	
DISCHARGE REASON	Ch 11	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.105	Upgrade of a BCD	
2.		
3.		
4.		
5.		
6.