MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           14 January 1999                   
	DOCKET NUMBER:   AC98-11078
 				   AR1998014398

	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. Michael L. Engle		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Shirley L. Powell		Member	
	Ms. Kathleen A. Newman		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 (BCD) be upgraded to honorable.

APPLICANT STATES:  That he received too much time for a $150.00 crime.  He returned the money and was sentenced to 10 years confinement.  He contends that after serving 2 years his sentence was overturned and he should have just received nonjudicial punishment.

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

He enlisted in the Army on 29 December 1986 for 3 years.  He completed his initial training and was assigned to the Federal Republic of Germany for duty as a heavy vehicle driver (64C).  He attained the rank of specialist on 1 February 1989.

On a date unknown to the Board, the applicant was charged with violation of Article 81, Uniform Code of Military Justice (UCMJ) for conspiracy (2 specifications), and with violation of Article 122, UCMJ for robbery (4 specifications).  He pleaded guilty to one specification of conspiracy and two specifications of robbery, and not guilty to the remaining charges.

On 6 June 1990 the applicant was convicted by a general court-martial (GCM) of conspiracy to commit an offense (one specification), and of stealing by force (two specifications).  He was acquitted of the charges and specifications to which he pleaded guilty.  He was sentenced to confinement for 10 years, reduction to private (E-1), forfeiture of all pay and allowances, to pay a fine of $500.00 to the United States, and a dishonorable discharge.

The convening authority approved only so much of the sentence as provided for a dishonorable discharge, confinement for 9 years, forfeiture of all pay and allowances, a fine of $500.00 payable to the United States Government, and reduction to the grade of private E-1.

On 31 July 1991 the United States Army Court of Military Review considered the applicant’s assertion that the sentencing portion of his GCM contained several errors.  The applicant contended that the judge erred by refusing to grant a mistrial after the court members acquitted him of all charges and specifications before them, without knowing that he had pleaded guilty to one specification of conspiracy and two specifications of robbery.  The applicant also contended that he was denied a fair sentencing hearing due to the trial counsel’s improper entering of evidence concerning previous summarized nonjudicial punishment (NJP).  The applicant also contended that the judge erred by allowing the trial counsel to cross-examine a defense witness about an alleged bar to reenlistment.  The applicant also contended that the judge erred by allowing rebuttal testimony from one of the victims concerning the applicant’s remorse.  The applicant further contended that he was prejudiced by his first sergeant’s testimony regarding a lack of rehabilitative potential.  The applicant further contended that the trial counsel’s argument that the robbery adversely affected military-civilian relations was improper, and that the cumulative effect of the errors during the sentencing hearing deprived him of a fair hearing.

The United States Army Court of Military Review opined that the judge did not abuse his discretion by refusing to grant a mistrial, and that that there was no error with respect to the evidence concerning the summarized NJP since the judge properly sustained a defense objection and instructed the court members to disregard this testimony.  However, in regard to the evidence concerning the bar to reenlistment, it opined that the judge erred by failing to direct the court members to disregard all references to the bar because it was fragmentary evidence.  Also, it opined that the judge erred in not properly instructing the court-members to disregard the testimony of the first sergeant when the judge sustained a defense objection to such testimony.  It also opined that the trial counsel’s argument regarding military-civilian relations was improper and that while not one of these errors was cause for reversal, the cumulative effect necessitated reversal.

The United States Army Court of Military Review affirmed the findings of guilty, but set aside the sentence.  It further stated that a rehearing on the sentence may be ordered by the same or a different convening authority.

On 20 August 1991 the applicant was released from confinement and returned to full duty status pending a sentence rehearing.

On 24 September 1991 a rehearing as to sentencing was held at Fort Leavenworth, Kansas.  On rehearing, the sentence adjudged was a BCD, confinement for 33 months, forfeiture of all pay and allowances and reduction to the grade of private E-1.  The sentence was approved, and the applicant was given credit for 96 days of pretrial confinement and for any portion of the punishment served from 5 January 1990 to 31 July 1991.

On 11 October 1991 the applicant was placed on excess leave status and provided transportation to his home.

On 29 January 1992 the United States Army Court of Military Review affirmed the sentence.

On 18 December 1992 the applicant was discharged, as a result of his conviction by GCM with a BCD.  He had 4 years, and 13 days of creditable active service and 672 days lost time due to confinement.

On 29 January 1992 the United States Army Court of Military Review considered an error (specifics unknown to the Board) personally asserted by the applicant and found it to be without merit.  It again affirmed the sentence.

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 trial by GCM was warranted by the gravity of the offenses charged.  His 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 applicant has not provided any evidence to support his contention that he did not deserve to receive a BCD.

3.  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.

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

____X____  ___X_____  ____X____  DENY APPLICATION

						Loren G. Harrell
						Director