MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           6 October 1999                   
	DOCKET NUMBER:   AR1999018092

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Van B. Cunningham		Member	
	Mr. Roger W. Able		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.

APPLICANT STATES:  That his discharge was inequitable because it was based on one isolated incident in 24 months of service.  He was deprived of effective counsel at his trial.  Counsel failed to request a psychological evaluation and mental health status report.  His DD Form 214 is provided as supporting evidence.

COUNSEL CONTENDS:  Counsel makes no contention.

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

He enlisted in the Regular Army on 13 July 1972.  

On 15 June 1973, the applicant accepted non-judicial punishment under Article 15 Uniform Code of Military Justice for disobeying a lawful order, failing to repair to his appointed place of duty and being disrespectful to a non-commissioned officer.

On 27 August 1973, the applicant was convicted by a special court-martial of assaulting two individuals by stabbing them with a knife and of resisting arrest.  The applicant had testified that on the evening of 4 July 1973, he and several others began drinking from two half-gallons of whiskey.  He returned to the barracks and smoked a bowl of hashish with a friend.  He did not remember the incident.  He was sentenced to forfeit $204 pay for 6 months, to confinement at hard labor for 6 months, and to a bad conduct discharge.

On 23 January 1974, the applicant was placed on excess leave pending appellate review.  The sentence was affirmed and on 17 July 1974, he was discharged, with a bad conduct discharge, pursuant to his court-martial conviction.  He had completed 1 year, 7 months and 7days of creditable active service and had 150 days of lost time.

Title 10, U.S. Code, section 1552, as amended, precludes any action by this Board which would disturb the finality of a court-martial conviction.

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.  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.

2.  Trial by court-martial was warranted by the gravity of the offense charged.  The applicant’s contentions relate to procedural matters which were finally and conclusively adjudicated in the court-martial appellate process and furnish no basis for recharacterization of the discharge.  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.

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

__aao___  __vbc___  __rwa___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999018092	
SUFFIX		
RECON		
DATE BOARDED	19991006	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	105.00	
2.		
3.		
4.		
5.		
6.