MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            31 March 1999
	DOCKET NUMBER:   AR1999016849

	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	
	Ms. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Mr. Curtis W. Barbee		Chairperson	
	Mr. John H. Kern		Member	
	Mr. Walter T. Morrison		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 to a general discharge.

APPLICANT STATES:  In effect, that his discharge was too harsh considering the nature of the offense.

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

The applicant’s military records were destroyed or lost during the National Personnel Records Center fire of 1973.  Records available to the Board were obtained from alternate sources and show he enlisted on 30 July 1949 and was honorably discharged on 14 August 1952.  He reenlisted on 15 August 1952 for a period of 6 years.

Evidence of record shows that he was convicted by three summary courts-martial for instances of larceny and AWOL.  His punishment consisted of a forfeiture of pay and a reduction to the pay grade of E-1. 

He was convicted by a general court-martial on 30 September 1957 for desertion and larceny currency in the amount of $189.91.  He was sentenced to confinement at hard labor for 2 years, a forfeiture of all pay and allowances and a Bad Conduct Discharge.  The sentence was adjudged on 31 October 1957.

The Court of Military Review reviewed the applicant’s case and affirmed only so much of the sentence as provides for a bad conduct discharge, confinement at hard labor for 18 months and a forfeiture of all pay and allowances.

On 4 April 1958, the applicant was discharged from the Army pursuant to the sentence of a general court-martial and was issued a Bad Conduct Discharge
Certificate.  

Army Regulation 615-364, in effect, at that time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 1(b) of the regulation provided, in pertinent part, that an enlisted person will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial imposing a bad conduct discharge.

The Table of Maximum Punishment in the Manual for Court-Martial, in effect at the time in question, shows the maximum punishment for larceny of a value of more than $50.00, was a Dishonorable Discharge, a forfeiture of all pay and allowances and confinement at hard labor not to exceed 5 years.  This table also shows the maximum punishment for desertion terminated by apprehension was a Dishonorable Discharge, forfeiture of all pay and allowances and confinement at hard labor not to exceed 3 years. 

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 regulation.

2.  Notwithstanding the applicant’s contention that his discharge was too harsh, the Board noted he was convicted for offenses of desertion and larceny.  The Board noted that for these offenses, he could have received a Dishonorable Discharge instead of a Bad Conduct Discharge.

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

CWB____  JHK____  WTM____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999016849	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990331	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	19580404	
DISCHARGE AUTHORITY	AR  615-364 	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.105		
2.		
3.		
4.		
5.		
6.