MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           25 November 1998                   
	DOCKET NUMBER:   AC98-11245

	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 not guilty of the assault he was charged with at his court-martial.

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

He enlisted in the Army on 24 March 1972 for 3 years.  He completed his initial training and served at Fort Hood, Texas, until his reassignment to the Federal Republic of Germany in October, 1973.

Between November 1972 and July 1974 the applicant received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, on four occasions for AWOL, possession of marijuana, communicating threats, and being disrespectful in language.  The punishments included forfeitures of pay, reductions in rank, and extra duty.

On 4 December 1974 the applicant was convicted by a special court-martial (SPCM), empowered to adjudge a punitive discharge, of assault and battery (two specifications), of aggravated assault, and of communicating a threat.  He pled “not guilty” to the charges and their specifications.  He was found guilty of committing an assault upon three other soldiers by striking one in the face and another on his head with a hollow metal piece of tubing approximately one-quarter inch in diameter and two feet in length and of placing a knife to the throat of a third soldier.  He was also found guilty of the charge of communicating a threat.  He was sentenced to confinement at hard labor for 4 months, a forfeiture of $100.00 per month for 4 months, a reduction to the rank of private (E-1), and a BCD.  The convening authority approved the sentence on 10 January 1975.

After serving his period of confinement, the applicant was restored to active duty pending appellate review of his court-martial.  He requested excess leave, which was granted, and then went AWOL.

Appellate review of his case was completed, his sentence was affirmed and the BCD was ordered executed.  On 8 October 1975 the applicant was discharged, as a result of his conviction by SPCM.  He had completed 2 years, 10 months and 8 days of creditable active service and 249 days lost time due to AWOL and 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 SPCM 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 was not guilty of the SPCM charges.  The Board notes that the applicant was previously administered nonjudicial punishment for, among other offenses, communicating threats, being disrespectful in language, and drug possession.  

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

___JEV__  ___JNS__  ___RVO__  DENY APPLICATION

						Loren G. Harrell
						Director