MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            15 June 2000                  
	DOCKET NUMBER:   AR1999023989

	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. Carl W. S. Chun		Director	
	Mr. Leland Edwards		Analyst	

  The following members, a quorum, were present:

	Mr. Orville w. Troesch Jr. 		Chairperson	
	Ms. Kathleen A. Newman 		Member	
	Ms. Margaret V. Thompson 		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:  In effect, that his Bad Conduct Discharge (BCD) be upgraded to an Honorable Discharge.

APPLICANT STATES:  That his punishment was too harsh for the offense for which he was convicted; that he was convicted even before his court-martial was over because his unit already had transfer orders assigning him to the United States Army Correctional Activity (USACA), Fort Riley, Kansas.

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

He enlisted in the Regular Army for 4 years on 28 October 1985.  Following completion of all required military training, he was awarded military occupational specialty (MOS) 76Y, Unit Supply Specialist, and sent to Fort Bliss, Texas.

On 24 October 1986, the applicant was transferred from Fort Bliss to Germany.  In Germany, court-martial charges were preferred against the applicant for a number of offenses.  He was tried by a general court-martial on 26 April 1988 and convicted of two specifications of Article 128 (assault), Uniform Code of Military Justice.  He was sentenced to a BCD, confinement for 9 months, forfeiture of all pay and allowances, and reduction to private (E-1).  Immediately upon conviction, he was placed in confinement at the United States Army Confinement Facility (USACF)—Mannheim, Germany to await transfer to a confinement facility in the United States.  

The applicant was transferred from the USACF—Mannheim to the USACA for service of his sentence to confinement.  Transfer was effected by Order Number 12-8, USACF—Mannheim, dated 11 May 1988; the applicant arrived at the USACA on 12 May 1988.

Upon completion of his sentence to confinement, the applicant was released and placed on excess leave pending completion of the appellate review of his conviction.  On 3 November 1988, the United States Army Court of Military Review upheld the applicant’s conviction and sentence.  His BCD was executed on 8 March 1989.  He had 2 years, 8 months, and 26 days of creditable service and 225 days of lost time due to confinement.

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.

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 this 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.

3.  The applicant’s placement in confinement occurred immediately upon his conviction.  His transfer from confinement in Germany to confinement in the United States occurred approximately 2 weeks after his conviction, after allowing for administrative processing and arrangement for a prisoner flight to the United States.  There was no irregularity in the transfer process.

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

__owt___  __kan___  __mvt____  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR1999023989	
SUFFIX		
RECON		
DATE BOARDED	20000615	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	19880308	
DISCHARGE AUTHORITY	AR 635-200, C3	
DISCHARGE REASON	A73.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	105.0000	
2.	110.0000	
3.		
4.		
5.		
6.