MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:           25 November 1998                   
	DOCKET NUMBER:   AC98-11135

	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. James E. Vick		Chairperson	
	Mr. John N. Slone		Member	
	Mr. Raymond V. O’Connor		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 was wrongfully convicted of a crime that he did not commit.  He contends that he only owned the knife and did not know that the person he lent it to would use it to stab someone.

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

He enlisted in the Army on 16 November 1973 for 3 years.  He completed his initial training and served in a series of assignments in the United States as a power generator equipment repairer (52B).

On 10 November 1976 the applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for failing to turn in all brass and ammunition in his possession.  The punishment included a forfeiture of $100.00, a reduction in rank from specialist four to private first class (suspended), and 14 days extra duty.

On 13 January 1977 the applicant received NJP for being disrespectful in language to his superior noncommissioned officer.  The punishment included a forfeiture of $100.00.  Because of this misconduct, the suspended reduction to private first class was vacated, and the applicant was reduced.

On 13 July 1977 the applicant was charged with committing an assault upon a private, in violation of Article 128, UCMJ, by stabbing him in the back with a dangerous weapon (a knife) and with the additional charge of knowingly hindering the trial of another private by assisting him to clean and conceal the knife used to commit the assault upon the first private.  He was tried by general court-martial and pled “not guilty” to both charges and specifications.  He was found “not guilty” of committing the assault but “guilty” of assisting the second solider in cleaning and concealing the knife.  He was sentenced to a BCD.  The convening authority approved the sentence on 13 July 1977.

On 4 October 1977 while awaiting appellate review of his court-martial, the applicant was convicted by a summary court-martial of failing to repair 
(5 specifications).  He was sentenced to reduction in rank from private first class to private (E-1) and confinement at hard labor for 30 days.

On 11 April 1978 upon completion of the appellate review, the BCD was executed, and the applicant was discharged, as a result of his conviction by GCM.  He had 4 years, and 28 days of creditable active service and 32 days lost time due to confinement.

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.  Also, it is reasonable to presume that the applicant asserted the defense of not knowing what the other soldier who borrowed his knife wanted to use it for at his trial.  The court-martial was apparently not convinced by that argument and he has submitted no evidence to convince this Board.

4.  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.

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

__JEV___  __JNS___  ___RVO__  DENY APPLICATION

						Loren G. Harrell
						Director