MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:             24 August 2000
	DOCKET NUMBER:   AR2000036882

	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. Antoinette Farley		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Mr. Curtis L. Greenway		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 his bad conduct discharge (BCD) be upgraded to an honorable discharge.

APPLICANT STATES:  In essence, that he was unaware that his discharge could be upgraded.  He relies on his service record in support of his application.

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

On 20 October 1978, he enlisted in the Army Reserve for 6 years and served until 23 September 1979.  He was given credit for 119 days of active duty (for his initial training).  During this time period he was awarded military occupational specialist (MOS) 36K10 (Tactical Wire Operations Specialist).  

On 3 August 1979, he was ordered to active military service for 20 months and 
4 days.  On 24 September l979 he reported to the US Army Reception Station, Fort Dix, New Jersey, as a “Receptee.”  On 27 September 1979, he was reassigned for duty at Fort Stewart, Georgia, in his MOS.  

While at Fort Stewart, he was listed as being absent without leave (AWOL) from 
16-18 May 1980.  There is no recorded punishment for this indiscipline.  On 
30 November 1980 he was honorably discharged for the purpose of immediate reenlistment.  He was credited with 1 year, and 6 months active service, with no recorded lost time.  The highest pay grade he attained was E-3. 

On 1 December 1980, he reenlisted in the Regular Army for 3 years.  He remained at Fort Stewart until transferred to Germany on 23 March 1981.

On 25 August 1982, while stationed in Germany, the applicant was convicted of violation of two specifications of the Uniform Code of Military Justice (UCMJ), both incidents on 14 May 1982.  The first specification was for violation of Article 121, UCMJ, for stealing property of a service member valued at $330.00.  The second specification was for violation of Article 130, UCMJ, for unlawfully entering a room in the barracks with the intent to commit a criminal offense (larceny).  His approved sentence included reduction to pay grade E-1, forfeiture of all pay and allowances, confinement at hard labor for 13 months and discharge with a BCD.  There were no previous convictions considered.  He was then returned to the United States and served his confinement at the United States Army Correctional Activity (USACA), Fort Riley, Kansas.

On 25 October 1982, the United States Army Court of Military Review affirmed the sentence. 

On 31 January 1983, General Court-Martial Order Number 16 was issued by the USACA, Fort Riley, which announced that the sentence having been affirmed and that the provisions of Article 71 (c) having been complied with, directed that the remainder of the sentence (BCD) be duly executed.  The remaining part of the sentence of confinement at hard labor for 8 months was remitted.

On the same date the applicant was discharged, with a BCD, under the provisions of Army Regulation 635-200, Chapter 3, by reason of conviction by court-martial, other.  He had completed 1 year and 8 months of active military service and had 271 days of lost time due to confinement during the enlistment under review.

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-marital conviction.  The sentence may be modified by the Board based only upon a finding of clemency.

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 this requirement.

2.  Trial by court-martial was warranted by the gravity of the offences charged.

3.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterized the serious misconduct for which the applicant was convicted.

4.  The applicant has provided no evidence of any matters in mitigation nor does his record contain such information.  Therefore, the Board finds there has been no basis established upon which to grant clemency in this case.

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

__gdp  __  __clg____  __alr_____DENY APPLICATION

Carl W. S. ChunDirector, Army Boards for Correctionof military Records

INDEX
CASE ID	AR2000036882	
SUFFIX		
RECON		
DATE BOARDED	20000824	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	19830131	
DISCHARGE AUTHORITY	CH 3	
DISCHARGE REASON	A68.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	A72.00	
2.	A71.00	
3.	A67.30	
4.		
5.		
6.