MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           12 January 2000                
	DOCKET NUMBER:   AR1999022499

	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. Robert J. McGowan		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Ms. Irene N. Wheelwright 		Member	
	Mr. Luther L. Santiful		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 a General Discharge (GD) under honorable conditions.

APPLICANT STATES:  That he was not present during the incident for which he was tried and convicted; that he was found guilty by association.  He provides no documentation in support of his application.

COUNSEL STATES:  On 6 October 1999, that there is nothing in the applicant’s file to assist in developing supporting comments.  Counsel requested a 60-day delay in processing the case in order to provide an opportunity to contact the applicant.  After 90 days, counsel did not respond further.

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

He enlisted in the Regular Army for 3 years on 31 January 1973.  Trained as a supply specialist, he was assigned to the Combined Arms Training Center, Germany.

In Germany, he received summarized nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, on 6 September 1973 leaving his place of duty from 1300-1600 hours, 28 August 1973.  On 10 December 1973, he received regular NJP for two specifications of failing to report to his place of duty and for failing to provide a urine sample for drug testing.

On 6 March 1974, the applicant was tried for the offense of robbing a fellow soldier of $2,974 and 700 Deutsche Marks.  Although he pleaded not guilty, he was found guilty and sentenced to confinement for 2 years, forfeiture of all pay and allowances, reduction to private, and a BCD.

The applicant was transferred to the United States Disciplinary Barracks, Fort Leavenworth, Kansas, where he served his sentence to confinement.  His BCD was executed on 17 March 1976 following completion of his appellate reviews.  He had 2 years, 5 months, and 25 days of creditable service and 506 days of lost time due to confinement.  He also had 192 days of excess leave taken while awaiting final appellate action on his 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 offenses charged.  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.  The applicant's contentions concerning his presence at the robbery incident relate to evidentiary matters which were finally and conclusively adjudicated in the court-martial appellate process, and furnish no basis for recharacterization of the discharge.

3.  The Military Justice Act of 1983 (Public Law 98-209), provides, in pertinent part, that military correction boards may not disturb the finality of a conviction by court-martial.

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

_JNS___  __INW___  __LLS___  DENY APPLICATION

						Karl F. Schneider
				     Director, Army Review Boards Agency

INDEX

CASE ID	AR1999022499	
SUFFIX		
RECON		
DATE BOARDED	20000112	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19881114	
DISCHARGE AUTHORITY	AR 635-200 C11	
DISCHARGE REASON	A72.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	105.0100	
2.	110.0000	
3.		
4.		
5.		
6.