MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           21 January 1999                   
	DOCKET NUMBER:   AC98-12820
				   AR1998013787

	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	
	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 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 a general discharge under honorable conditions.

APPLICANT STATES:  He had exemplary service up to the point of his court-martial.  He served 6 months in confinement and then was released back to active duty.  The person who testified at his trial was not the person who charged him with disobeying an order.  The Army asked him to reenlist prior to discharging him.

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

He enlisted in the Regular Army on 26 September 1979.  He completed basic training and advanced individual training and was awarded military occupational specialty 94B (Cook).

On 24 January 1981, the applicant accepted non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for assault.

On 17 March 1981, the applicant accepted NJP under Article 15, UCMJ for wrongfully possessing marijuana.  He did appeal but his appeal was denied.

On 18 September 1981, the applicant accepted NJP under Article 15, UCMJ for disobeying a lawful order.

On 24 March 1982, the applicant was convicted by a special court-martial of two specifications of willfully disobeying an order; one specification of being disrespectful in language toward his superior non-commissioned officer; and two specifications of wrongfully communicating a threat to injure.  He was sentenced to be reduced to pay grade E-1, to forfeit $360 pay for 3 months, to confinement at hard labor for 3 months and to a bad conduct discharge.

On 8 June 1982, the applicant was released from confinement.  On 1 July 1982, he was placed on excess leave without pay and allowances pending completion of his appellate review.

On 20 September 1982, the Army Court of Military Review affirmed the sentence.
The applicant was so notified on 14 October 1982 and given 60 days in which to petition for a grant of review.  There is no evidence of record to show that he did so.

On 3 March 1983, the applicant was discharged with a bad conduct discharge, in pay grade E-1, pursuant to his court-martial sentence.  He had completed           3 years, 2 months and 14 days of creditable active service and had 84 days of lost time.

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.

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.  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.

2.  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.

3.  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.

4.  The applicant’s record of service prior to his court-martial does not merit an upgrade of his discharge.

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

__KJN___  __FNE___  __JPI___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-12820/AR1998013787	
SUFFIX		
RECON		
DATE BOARDED	19990121	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	19830303	
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	105.00	
2.		
3.		
4.		
5.		
6.