MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           29 December 1999                   
	DOCKET NUMBER:   AR1999026071

	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. George D. Paxson		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Christopher J. Prosser		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 court-martial be dismissed.

APPLICANT STATES:  In effect, that he was convicted on nothing but circumstantial evidence.  He provides no supporting evidence.

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

He enlisted in the Regular Army on 25 May 1977.

In 1978, the applicant accepted non-judicial punishment under Article 15, Uniform Code of Military Justice on three occasions for dereliction in the performance of his duties; failure to obey a lawful order and dereliction in the performance of his duties; and being absent from his unit, respectively.

On 1 September 1978, the applicant was convicted by a special court-martial of stealing approximately 100 rounds of belted 7.62 ammunition and approximately 142 rounds of 5.56 tracer ammunition, property of the U. S. Government; stealing
two cassette tapes, property of the Fort Drum, NY Post Exchange, and failing to go to his appointed place of duty.  He was sentenced to be discharged with a bad conduct discharge, to be confined at hard labor for 4 months (confinement in excess of 56 days suspended for 6 months), and to forfeit $250.00 pay for 6 months.

On 29 June 1979, the U. S. Army Court of Military Review affirmed the findings of guilty and the sentence.

The applicant’s DA Form 2-1, Personnel Qualification Record shows he was absent without leave (AWOL) from 5 August 1979 – 31 January 1980 but there is no evidence of punishment for this AWOL.

On 11 February 1981, the applicant was placed on excess leave pending completion of the Appellate Review.  The Appellate Review action is not available.

On 21 April 1981, the applicant was discharged, with a bad conduct discharge, pursuant to his court-martial sentence.  He had completed 3 years, 1 month and 27 days of creditable active service and had 275 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.

On 4 October 1993, the Army Discharge Review Board denied the applicant’s request for an upgraded discharge.

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.

3.  The applicant’s contentions relate to evidentiary and procedural matters which were finally and conclusively adjudicated in the court-martial appellate process and furnish no basis for the recharacterization of the discharge.

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

__gdp___  __clg___  __cjp___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999026071	
SUFFIX		
RECON		
DATE BOARDED	19991229	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	105.01	
2.		
3.		
4.		
5.		
6.