MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           27 June 2000
	DOCKET NUMBER:   AR2000036036

	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
Mr. David H. Keller		Director
Analyst	

  The following members, a quorum, were present:

	Mr. Mark D. Manning		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Curtis L. Greenway		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 general under honorable conditions.

APPLICANT STATES:  That clemency is warranted because it is an injustice for him to suffer the adverse consequences of a bad discharge;  and that under current standards, he would not receive the type of discharge he did.  He contends that the offenses were all relatively minor and his punishment was too harsh; that he was generally a good service member and his average conduct and efficiency ratings were excellent.  He also contends that his ability to serve was impaired by his youth and immaturity.  He claims that he was also injured, and that limited his abilities to serve adequately; that he was being considered for a physical disability discharge when the charges were filed against him.  He alleges that during his period of confinement, he suffered racial discrimination; the majority of the guards and prisoners were African-American and he was often attacked by them.  Finally, he offers that he has been a good citizen since discharge; his employment history includes:  being a seasonal park ranger for 
6 months, worked in oil fields for 1 year, construction equipment operator and long haul truck driver for 15 years, 7 years with the telephone company, and 
16 years as a contract investigator with the Bureau of Alcohol, Tobacco and Firearms.  He volunteers his time to assist homeless veterans. 

COUNSEL CONTENDS:  Counsel offered no evidence or argument beyond that submitted with the application.

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

He enlisted on 24 June 1971 and, after training, was assigned to Fort Rucker, Alabama.

On 1 March 1972, the applicant was administered nonjudicial punishment (NJP) under Article 15, UCMJ, for stealing money and goods of a value of $5.00.

On 27 September 1972, he was administered NJP for two specifications of failure to obey a lawful order.

On 27 December 1972, the applicant was tried by a general court-martial and found guilty of failure to obey a lawful order; stealing a money order of a value of $15.00, the property of another soldier; misappropriation of a government vehicle; stealing 11 flying man’s jackets of a value of more than $100.00, the property of the U.S. Government; and attempting to pander (wrongful and unlawful receipt of valuable consideration on account of arranging for another 
soldier to engage in sexual intercourse with a female).  He was sentenced to confinement at hard labor for 30 months, forfeiture of all pay and allowances, reduction in grade to private E-1, and a bad conduct discharge.  
Only so much of the approved sentence as provided for a bad conduct discharge, confinement at hard labor for 2 years, and reduction to the grade of private E-1, was affirmed upon review.

On 7 December 1973, the bad conduct discharge was executed at Fort Leavenworth, Kansas.  The applicant had 1 year, 3 months and 25 days of creditable service and 415 days of time lost.

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.  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.

2.  The applicant’s assertion that he has been a good citizen is accepted by the Board.  However, this fact is not so extraordinary as to demonstrate that the discharge is now unjust.

3.  Contrary to the applicant’s allegation, there is no evidence in the available records to demonstrate that he was the victim of racial discrimination.

4.  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.

5.  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

__mdm__  __wtm__  __clg ____  DENY APPLICATION

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

INDEX

CASE ID	AR2000036036	
SUFFIX		
RECON		
DATE BOARDED	20000627	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	19731207	
DISCHARGE AUTHORITY	AR635-200 CH11	
DISCHARGE REASON	A68.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.	142.00	
3.		
4.		
5.		
6.