MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           6 October 1999                   
	DOCKET NUMBER:   AR1999023318

	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 dishonorable discharge be upgraded to a general discharge under honorable conditions.

APPLICANT STATES:  That he feels a dishonorable discharge for petty theft committed while under the influence of drugs was unjust.  The Army overreacted and offered him no help with his drug problem which he brought to their attention prior to the theft incident.  No supporting evidence is provided.

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

He enlisted in the Regular Army on 28 April 1958.  On 22 September 1958, he was convicted by a summary court-martial of being absent without leave (AWOL) from 2 – 6 September 1958.  He was sentenced to forfeit $30.00 pay.  On           3 November 1958, he was convicted by a summary court-martial of being AWOL from 20 – 21 October 1958 and of violating a lawful general regulation by going beyond the limits of his pass.  He was sentenced to forfeit $40.00 pay.  

On 10 February 1960, the applicant was convicted by a general court-martial of stealing a portable radio, value about $69.95.  He was sentenced to be dishonorably discharged, to forfeit all pay, to be reduced to pay grade E-1, and to confinement at hard labor for one year.  His two previous convictions were considered.  (The maximum sentence could have been a dishonorable discharge and 5 years confinement at hard labor.)

DD Form 464, Admission Classification Summary dated 21 April 1960 noted the applicant’s version of the incident, wherein he and a friend came in late, passed the sleeping charge of quarters, then the friend stole the radio but gave it to him to keep.  He later pawned it for $10.00.  The form also noted he used codeine for approximately one year before his incarceration, which took the form of cough syrup and pills, and also had used marijuana.

The applicant completed a separation physical examination on 15 June 1960.  On his Report of Medical History, he does not mention having a drug addiction.

On 28 June 1960, the applicant was discharged, with a dishonorable discharge, pursuant to his court-martial sentence.

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 approved sentence was less than the maximum that could have been given but did consider the applicant’s two previous convictions.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.

3.  While there is some evidence of record to show the applicant said he had used drugs, there is no evidence of record and the applicant provides none to show he was addicted to drugs or was under the influence of drugs at the time of the incident for which he was convicted.

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

__aao___  __vbc___  __rwa___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999023318	
SUFFIX		
RECON		
DATE BOARDED	19991006	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	105.01	
2.		
3.		
4.		
5.		
6.