MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE: 6 January 2000 
	DOCKET NUMBER:   AR1999026272

	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. Karl F. Schneider		Director	
	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Edward Williamson		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. Allen L. Raub		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 the court-martial that he received for driving while under the influence (DWI) be removed from his official military file (OMPF).

APPLICANT STATES:  In effect, that he was charged with DWI and negligent homicide, but was convicted of only the DWI charge.  He served 6 months confinement at hard labor and returned to duty status to complete his remaining service.  He was honorably discharged.  He is concerned that the charge of negligent homicide is entered on his FBI records.  He submits a letter written in his own behalf in support of his request.

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

He served honorably in the Army National Guard (ARNG) from 24 June 
1986-15 October 1987 in military occupational specialty (MOS) 63B (Light Wheel Vehicle Mechanic).  On 16 October 1987, he enlisted in the Regular Army for a period of 4 years and his previous MOS.  On 4 May 1989, he was assigned to the Republic of Germany.  

On 24 April 1990, while stationed at Bad Kreuznach, Germany, the applicant was convicted by a special court-martial of operating a passenger car while drunk on 3 September 1980.  The charge for unlawfully killing a German national, while negligently driving a motor vehicle known to be in unsafe mechanical condition while DWI on 3 September 1989, was dismissed on government motion in compliance with a pretrial agreement.  He was sentenced to reduction from pay grade E-4 to pay grade E-1, forfeiture of pay, and confinement at hard labor for 6 months.  On 6 June 1990, he received a Letter of Reprimand for the DWI offense.

The applicant served in the Personnel Confinement Facility, Fort Knox, Kentucky from 24 April 1990-20 September 1990.  He then was returned to duty status to complete his service obligation.  

On 16 May 1992, he was honorably discharged under the provisions of Army Regulation 635-40, for physical disability with severance pay.  He had completed 
4 years, 1 month and 24 days of active military service and he had 147 days lost time due to being in confinement.

The statutory authority under which this Board was created (Title 10, United States 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. 

3.	While the applicant was restored to active duty and served honorably until he 
was separated for a physical disability, this in no way affects his conviction by a court-martial panel. 

4.  Under the operation of law, this Board is not empowered to excuse, or otherwise remove a conviction by court-martial from a soldier’s record.

5.  Further, changes to official records of other Federal agencies is not within the purview of this Board.  The applicant should contact the Director of the FBI directly and provide a copy of this document and a copy of his court-martial order (copy provided) and request correction of his FBI records. 

6.  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

EW_____  SK_____  ALR________  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999026272	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000106	
TYPE OF DISCHARGE	(HD)	
DATE OF DISCHARGE	19920506	
DISCHARGE AUTHORITY	AR635-40  	
DISCHARGE REASON	(PD) Physical Disability with Severance Pay	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	145.0000	
2.		
3.		
4.		
5.		
6.