MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:            02 December 1998                  
	DOCKET NUMBER:   AC98-12101

	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. David H. Keller		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond v. O’Connor, Jr.		Chairperson	
	Mr. George D. Paxson 		Member	
	Mr. John H. Kern		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 the bad conduct discharge given to her spouse, a deceased former servicemember, be upgraded to honorable.

APPLICANT STATES:  That her spouse was at the wrong place at the wrong time.  She is requesting benefits for the former servicemember’s dependent children.

EVIDENCE OF RECORD:  The deceased former servicemember's military records show:

He enlisted on 5 January 1973 and, after training, was assigned to Fort Riley, Kansas.

On 18 June 1973 the former servicememeber was administered nonjudicial punishment under Article 15, UCMJ, for disobeying a lawful order.

On 10 July 1973 the former servicemember was tried and found guilty by summary court-martial for 5 days AWOL and wrongful possession of marijuana.  He was sentenced to 45 days of hard labor, forfeiture of $126.00 and reduction in grade to private (E-1).

On 8 July 1974 a general court-martial convicted the former servicemember of two specifications of stealing money from soldiers by putting them in fear.  The approved sentence, which comprised a dishonorable discharge, confinement at hard labor for 2 years, forfeiture of all pay and allowances, and reduction to the lowest enlisted grade, was affirmed upon review.   The dishonorable discharge  was mitigated to a bad conduct discharge upon recommendation of the Army Clemency and Parole Board.  On 11 April 1975 the bad conduct discharge was executed.

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.  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 deceased former servicemember was convicted.

2.  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.

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

INDEX

CASE ID	AC	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.