MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:                              
	DOCKET NUMBER:   AC9808660

	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	
	M		Analyst	

  The following members, a quorum, were present:

	Mr. 		Chairperson	
	Mr. 		Member	
	Mr. 		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.

APPLICANT STATES:  In effect, he was a Staff Sergeant with five honorable discharges behind him.  He had a good record for 15 years when he was discharged for adultery.  He doesn’t want to live with a bad conduct discharge all his life.

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

He was inducted into the Army on 2 May 1972.  He had continuous service until his discharge.

On 21 May 1972, the applicant accepted non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for possessing alcoholic beverages in the company area.

On 26 July 1974, the applicant was found guilty of possession of marijuana by the Level Plains Alabama City Court and fined $150.00.

On 14 April 1976, the applicant accepted NJP under Article 15, UCMJ for failing to go to his appointed place of duty.

On 26 July 1976, the applicant accepted NJP under Article 15, UCMJ for having alcohol at his guard post.

On 10 June 1977, the applicant accepted NJP under Article 15, UCMJ for disobeying a lawful order from his superior non-commissioned officer.

On 2 March 1979, the applicant accepted NJP under Article 15, UCMJ for failure to repair.

On 28 June 1979, the applicant accepted NJP under Article 15, UCMJ for, with intent to defraud, falsely pretending to have a meal card and thereby wrongfully and unlawfully obtaining meals in the mess hall while on separated rations.

The Criminal Investigation Command (CID) investigated a complaint that on        19 August 1985 the applicant unlawfully entered a neighbor’s quarters and committed rape, sodomy and attempted sodomy upon her and in the process committed adultery against his spouse.  The applicant agreed to an interview in which he admitted to consensual sex.

On 10 January 1986, the applicant was convicted by a general-court martial of adultery.  He was sentenced to a bad conduct discharge, to be reduced to pay grade E-1 and to confinement for 6 months.

On 4 February 1987, the U.S. Army Court of Military Review affirmed the sentence.

On 18 November 1987, the applicant was discharged with a bad conduct discharge, pursuant to his court-martial sentence.  He had completed 15 years,  1 month and 16 days of creditable active service and had 151 days of lost time (4 days civil confinement and the rest military confinement 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.  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

                       DENY APPLICATION

                             				 Loren G. Harrell
					 	 Director