MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:           

	BOARD DATE:            10 March 1999   
	DOCKET NUMBER:   AR1999018119

	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. Wanda L. Waller		Analyst	

The following members, a quorum, were present:

	Mr. Fred K. McCoy		Chairperson	
	Ms. Meta Waller		Member	
	Mr. Kenneth L. Wright		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 honorable.  

APPLICANT STATES:  In effect, that he had no intention of hurting the lieutenant who claimed the applicant had threatened him.  He contends that he was a sergeant just expressing himself.  He also contends that he has not been in any trouble since his discharge and he is employed as a security guard.  

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

On 8 October 1976, at the age of 19, he enlisted for a period of 4 years.  He successfully completed his training and was transferred to Germany to serve as an infantryman.  

On 2 August 1977 nonjudicial punishment (NJP) was imposed against the applicant for failure to repair (FTR).  His punishment consisted of a forfeiture of pay and 14 days of extra duty and restriction.

NJP was imposed against the applicant on 9 May 1979 for FTR, being disrespectful to his superior commissioned officer (SCO) and disobeying a lawful order.  His punishment consisted of a reduction to pay grade E-3 (suspended for 60 days) and 14 days of extra duty and restriction.

On 8 April 1980 he reenlisted for a period of 6 years in the pay grade of E-5.

The applicant received his third NJP on 11 October 1980 for FTR, being disrespectful in language toward his SCO and appearing in an unclean uniform.  His punishment consisted of a reduction to pay grade E-4.

NJP was again imposed against the applicant on 18 December 1980 for breaking restriction and FTR.  His punishment consisted of 7 days of correctional confinement and a forfeiture of pay.  On 19 December 1980, the punishment of correctional confinement for 7 days was set aside.  

While stationed in Germany, the applicant was convicted by special court-martial (SPCM) on 20 March 1981 of FTR, being AWOL from 27 January 1981 until
29 January 1981, drunk and disorderly and disobeying a lawful command from his SCO.  He was sentenced to a reduction to pay grade E-2 and 30 days of extra duty.  The convening authority approved the sentence on 15 May 1981.

He was convicted again by SPCM on 7 July 1981 of four specifications of FTR, disobeying three lawful orders, being AWOL from 17 June 1981 until 18 June 1981, and breaking restriction.  He was sentenced to confinement for 4 months, forfeiture of $250.00 pay per month for 4 months and reduction to pay grade E-1. The convening authority approved the sentence on 21 July 1981.  
The applicant was convicted by SPCM on 2 September 1981, contrary to his pleas, of being disrespectful toward his SCO and communicating a threat to injure his SCO.  He was sentenced to a bad conduct discharge.  The convening authority approved the sentence on 17 November 1981.

On 30 July 1982 the Court of Military Review affirmed the findings of guilty and the sentence.  The U.S. Court of Military Appeals denied the applicant’s petition on 4 December 1984.

Accordingly, he was discharged pursuant to his court-martial conviction on
29 January 1985 and issued a Bad Conduct Discharge Certificate.  He had
served 7 years, 11 months and 23 days of total active service.  He had 121 days lost time due to AWOL and confinement.

The applicant’s separation document shows he was awarded the Army of Occupation Medal.

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 offenses charged.  Conviction and discharge were affected in accordance with applicable law and regulations.

2.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

3.  The applicant’s contentions have been noted by the Board.  However, they are not supported by either evidence submitted with the application or the evidence of record.

4.  His claim of good post-service conduct has also been considered by the Board.  However, it is not sufficiently mitigating to warrant upgrading his discharge given the seriousness of the charges, his poor disciplinary record and his overall undistinguished record of service.

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

________  ________  ________  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999018119	
SUFFIX		
RECON		
DATE BOARDED	1999/03/10	
TYPE OF DISCHARGE	(BCD)	
DATE OF DISCHARGE	19850129	
DISCHARGE AUTHORITY	AR635-200  	
DISCHARGE REASON	CM CONVICTION	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.  189		
2.  813 		
3.  815		
4.		
5.		
6.