MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            7 June 2000
	DOCKET NUMBER:   AR2000036206

	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		Director	
	Ms. Deyon D. Battle		Analyst	

The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Edwin S. Castle		Member	
	Mr. James P. Steuve		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 three separate applications, that his bad conduct discharge (BCD) be upgraded to an honorable discharge.

APPLICANT STATES:  That he had a alcohol problem that caused him to do the things that he did while he was in the Army.  He states that he sustained an injury to his head and he did not know what he was doing.  He continues by stating that he cannot get a good job and he has been stripped of his benefits.  He concludes by stating that he is trying to turn his life around and having his discharge upgraded will help him turn his life around.

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

On 21 February 1974, he enlisted in the California Army National Guard (CAARNG) for 6 years in the pay grade of E-1.  He successfully completed his training as a light vehicle driver.  He was promoted to the pay grade of E-2 on 21 June 1974 and to the pay grade of E-3 on 2 July 1975.

On 22 February 1979, the applicant was involuntarily ordered to active duty effective 9 April 1979 as a result of his unsatisfactory participation in the CAARNG.  On 20 April 1979, he was transferred to Fort Carson, Colorado.

On 29 February 1980, the applicant was convicted by a special court-martial of possession of an unregistered revolver and of three specifications of larceny.  His sentence consisted of a BCD, confinement at hard labor for 6 months, a reduction in pay grade and a forfeiture of pay.  

The convening authority approved the sentence as adjudged on 9 May 1980 and the applicant was placed in confinement pending completion of appellate review.

On 19 June 1980, the United States Disciplinary Barracks, Fort Leavenworth, Kansas, suspended the unexecuted portion of the sentence to a BCD, unapplied forfeiture of pay for 6 months and confinement at hard labor for 6 months.  Unless the suspension was sooner vacated, the suspended portion of the sentence would be remitted without further action.  The applicant was placed on parole and assigned to the 3d Unit, US Army Retraining Brigade, Fort Riley, Kansas.

Nonjudicial punishment was imposed against the applicant on 3 July 1980 for being drunk and disorderly in a public place while in uniform and for willfully damaging a window (property of the United States) by throwing a bottle through it.  His punishment consisted of a forfeiture of pay, restriction and extra duty.

An investigation was initiated on 5 August 1980, to determine the facts and circumstances concerning allegations that he violated his parole by being drunk and disorderly in a public place, throwing a bottle through the billets window, failing to perform his duties due to intoxication (on two occasions), breaking restriction and being drunk on duty.  The investigating official determined that the applicant clearly had violated probation and he recommended that the suspension of the special court-martial sentence to a BCD be vacated.

On 14 August 1980, the suspended portion of the sentence as pertains to the BCD was vacated.  Accordingly on 20 February 1981, the applicant was discharged under the provisions of Army Regulation 625-200, chapter 11 as a result of a court-martial conviction.  He had completed 1 year and 2 days of total active service and he was furnished a BCD.

There is no evidence of record that shows that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

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.  The actions by the Army in this case were proper and there is no doubt to be resolved in favor of the applicant.

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 have been noted by the Board.  However, they are not sufficiently mitigating when compared to the seriousness of his offenses and his otherwise undistinguished record of service.  The evidence of record clearly shows that he was convicted by a special court-martial for possession of an unregistered revolver and of three specifications of larceny.  Even after his sentence to a BCD was suspended he continued to violate Army rules and regulations.  Considering the overall facts of the case, it does not appear that his BCD was too harsh.

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 the aforementioned 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

__esc___  __jps ___  __mkp___  DENY APPLICATION

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

INDEX

CASE ID	AR2000036206	
SUFFIX		
RECON		
DATE BOARDED	2000/06/07	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	1981/02/20	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	546	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  715	144.7200/A72.00/larceny	
2.		
3.		
4.		
5.		
6.