PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           21 January 1999                   
	DOCKET NUMBER:   AC98-12515
				   AR1998012512

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Loren G. Harrell		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

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

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his bad conduct discharge be upgraded to a discharge under honorable conditions or a fully honorable discharge.

3.  The applicant states that he was blackmailed into getting involved in a black market scheme.  White soldiers who did similar or worse offenses received Article 15s.  His heretofore unblemished career, combat service and awards had not been considered.  The Army Discharge Review Board (ADRB) failed to upgrade his discharge by only one vote.

4.	The applicant’s military records show that he was inducted into the Army on 21 April 1970 and had continuous service until his discharge.  He had served a 12-month tour in Vietnam as a rifleman where he earned the Combat Infantryman Badge, the Air Medal and the Bronze Star Medal. 

5.	Prior to his court-martial, the applicant had an unblemished career.  He had been promoted to Sergeant First Class, E-7 on 30 July 1981.

6.  On 28 June 1983, the applicant was convicted by a special court-martial of attempting to transfer duty-free goods to an unauthorized person; wrongfully possessing a ration control plate and military identification card made out in another’s name and wrongfully using them; and resisting lawful apprehension.  He was sentenced to confinement at hard labor for 2 months, to forfeit $382 pay for 2 months, to be reduced to pay grade E-1, and to receive a bad conduct discharge.

7.  On 23 August 1984, the applicant was discharged, in pay grade E-1, with a bad conduct discharge pursuant to his court-martial sentence.  He had completed 14 years, 2 months and 24 days of creditable active service and had 39 days of lost time (confinement).

8.  On 12 April 1985, the Army Court of Military Review affirmed the sentence.

9.	On 14 November 1988, the Army Discharge Review Board (ADRB) voted 3-2 to deny the applicant’s request to upgrade his discharge to a general discharge under honorable conditions.

10.  Title 10, U.S. Code, section 1552, as amended, precludes any action by this Board which would disturb the finality of a court-martial conviction.

CONCLUSIONS:

1.  From a purely legal standpoint, the applicant’s 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 he was convicted.  The applicant’s contentions that he had evidence he was the victim of racism should have been made a matter for the appellate review process.

2.  While the conduct which led to the applicant’s separation cannot be condoned, the Board notes that he had an unblemished record during the entire 13 years preceding the incident leading to his court-martial, which included a full combat tour in Vietnam.

3.  Although the applicant failed to apply to this Board within the time required, it would nonetheless be equitable and compassionate at this point in time to recommend the upgrade of the applicant’s bad conduct discharge to a general discharge.

4.  In view of the foregoing, it would be in the interest of justice to correct the applicant’s records as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was given a general discharge from the Army on 23 August 1984, pursuant to his sentence by special court-martial.

2.  That the individual concerned be issued a General Discharge Certificate from the Army of the United States, dated 23 August 1984, denoting a general discharge in lieu of the bad conduct discharge now held by him.

3.  That the individual concerned be issued a new DD Form 214 reflecting the aforementioned corrections.

4.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

KJN____  FNE_____  JPI_____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Karen J. Newsome

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AC98-12515/AR1998012512	
SUFFIX		
RECON		
DATE BOARDED	19990121	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	105.00	
2.		
3.		
4.		
5.		
6.