MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:           2 March 2000                   
	DOCKET NUMBER:  AR1999027271

	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.

	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Edwin S. Castle		Chairperson	
	Mr. Stanley Kelley		Member	
	Ms. Kathleen A. Newman 		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, reconsideration of his request for an upgrade of his dishonorable discharge (DD) which was denied by the Board on 19 April 1978.  Since records reflecting the Board’s consideration at that time are no longer available, it is impossible to determine if the evidence and arguments now presented are new and different.  Therefore, the case is reviewed de novo.

APPLICANT STATES:  In effect, that he was court-martialed for something that he could not have prevented.

EVIDENCE OF RECORD:  It appears that the majority of the applicant’s military records were lost or destroyed in the National Personnel Records Center fire of 1973.  The facts in this case are based on partially reconstructed personnel and court-martial records.

That prior to the period of enlistment under review, he had other honorable service.  The DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) for his prior periods of service are not a matter of record.  However, the periods of service totaled 12 years, 4 months and 4 days.

On 10 February 1954, the applicant reenlisted in the Regular Army for 6 years and military occupational specialty 141.60 (Field Artillery Crewman).  The highest pay grade he achieved was pay grade E-7.  His performance and conduct were excellent.   

On 13 July 1956, a general court-martial (GCM) acquitted the applicant of larceny of one tire and wheel and resisting apprehension.  

On 10 September 1956, he was convicted by GCM of two specifications of perjury.  Additionally, he was convicted of one specification of coercing an innocent person to violate the law by giving perjured testimony that was instrumental in his acquittal by a previous court-martial.

He was sentenced to a DD, forfeiture of all pay and allowances, and he was to be confined at hard labor for 7 years.  On 13 October 1956, the convening authority approved the sentence. 

On 20 June 1957, the United States Court of Military Review, affirmed the findings and modified the sentence.  The applicant was sentenced to receive a DD, forfeiture of all pay and allowances, and to be confined at hard labor for 
5 years.

On 5 July 1957, the applicant was discharged under the provisions of Army Regulation 635-204, for other than desertion (Court-Martial), with a DD.  He had completed 2 years, 6 months, and 19 days of active military service on the enlistment under review and he had completed 12 years, 4 months and 4 days of other honorable military service.  He also had 311 days lost time due to being in confinement.  His record does not contain any facts about the prior honorable periods of service.

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 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.  Even though the applicant had an excellent record prior to being court-martialed, he was a senior noncommissioned officer and he knowing perjured himself and clearly diminished the quality of his service below that meriting an honorable 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

__esc___  __sk____  __kan___  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999027271	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000302	
TYPE OF DISCHARGE	DD	
DATE OF DISCHARGE	19570705	
DISCHARGE AUTHORITY	AR635-204	
DISCHARGE REASON	For Other Than Desertion (Court-Martial)	
BOARD DECISION	Deny	
REVIEW AUTHORITY		
ISSUES         1.	A68.00	
2.		
3.		
4.		
5.		
6.