MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           13 January 2000                   
	DOCKET NUMBER:   AR1999028588

	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.

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Ernest M. Willcher		Chairperson	
	Mr. Ernest W. Lutz, Jr.		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:  That his bad conduct discharge be upgraded to a general discharge under honorable conditions and that his general court-martial be changed to a special court-martial.

APPLICANT STATES:  That he was a young private who was taken advantage of by a non-commissioned officer.  While he was stationed in Bosnia his grandmother, who was in loco-parentis to him, died leaving behind a lot of bills and no life insurance.  He had to take out a loan and he became depressed.  He was reassigned to the rear detachment and placed in the mailroom with a sergeant.  The sergeant stole mail, including an ATM card, and gave him a direct order to use the ATM card to withdraw $500.00 every other day out of which he would be given $200.00.  He knew it was wrong but the sergeant took advantage of his situation.  After he was caught, he took all the blame.  He refused to name names because he was afraid.  He was only protecting the sergeant because the sergeant outranked him.  He admits he was young and dumb but now he is older and has learned from his mistakes.  He needs an upgraded discharge so he can get a decent job and support his children.  Supporting evidence is as listed on the attachment to the DD Form 149.

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

He was born on 23 January 1973.  He enlisted in the Regular Army on 4 January 1995.  He was promoted to Private First Class, E-3 on 1 February 1996.

The applicant’s grandmother died on 9 February 1996 while he was stationed in Europe.  His aunt requested the applicant get stationed closer to home or otherwise get home to better be able to help the family.  He received a loan in the amount of $3,890.00 from the American Red Cross to pay funeral expenses.

In March 1996, the applicant received four counseling statements for failing to adapt to military service due to his pre-occupation with his personal problems.  

On 3 April 1996, the applicant completed a separation physical examination and was found qualified for separation.  On 4 April 1996, he completed a mental status evaluation and was found to have the mental capacity to understand and participate in proceedings, to be mentally responsible, and to have no evidence of psychiatric disorder or mental impairment of sufficient severity to warrant disposition through medical channels.  

On 10 June 1996, the applicant’s commander initiated action to separate him under the provisions of Army Regulation 635-200, Paragraph 5-18, other designated physical or mental conditions, specifically hypersensitivity, with a general under honorable conditions discharge.  The appropriate authority approved the recommendation on or about 17 June 1996.  His separation orders were published on 25 June 1996.
On 1 July 1996, the applicant accepted non-judicial punishment under Article 15, Uniform Code of Military Justice for failing to go to his appointed place of duty.  His punishment was to be reduced to Private, E-2, to forfeit $228.00 pay and to be restricted and perform extra duty for 14 days.  

On 3 July 1996, the applicant’s separation orders were revoked.

On 10 December 1996, the applicant was convicted by a general court-martial of 8 specifications of larceny of currency for a total of about $3,600.00, larceny and opening of certain mail matter, and failure to go to his appointed place of duty.  The first offense of larceny of currency occurred on 4 June 1996 and the last on 15 June 1996.  He was sentenced to be reduced to Private, E-1, to forfeit all pay and allowances, to be discharged with a bad conduct discharge, and to be confined for a period of 363 days.

On 6 June 1997, the U. S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence.

On or about 19 September 1997, the applicant was placed on involuntary excess leave pending appellate review of his case.  He was discharged on 14 January 1998 with a bad conduct discharge pursuant to his court-martial sentence.  He had completed 2 years, 2 months and 28 days of creditable service and had 282 days of lost time (confinement).

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 general court-martial was warranted by the gravity of the offenses charged.  The fact the applicant may not have known the difference between a general and a special court-martial is immaterial.  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 Board rejects the applicant’s claim that his misconduct was the result of his youth and inexperience (“young and dumb”).  He was almost 22 years old at the time of his enlistment and over 23 years old when he committed the first offense.  He was not a young private but a Private First Class who should have known that sergeants cannot “order” anyone to commit a crime.  

4.  The Board also notes that the applicant committed his first offense after he had taken his Chapter separation physical examination and just days before his Chapter separation was initiated.  

5.  The Board empathizes with the applicant’s desire to get a good job in order to better support his children; however, this factor does not warrant the relief requested.

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

__emw___  __ewl___  __mvt___  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999028588	
SUFFIX		
RECON		
DATE BOARDED	20000113	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	105.01	
2.		
3.		
4.		
5.		
6.