MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           7 September 2000
	DOCKET NUMBER:   AR2000037173

	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:

	Ms. Celia L. Aldolphi 		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Thomas B. Redfern III		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:  Although his application was not properly completed, he requests, in effect, that his bad conduct discharge (BCD) be upgraded.

APPLICANT STATES:  By way of a pre-printed form from the Disabled American Veterans that, in effect:  his quality of service was generally good (prior honorable discharge, awards and decorations, promotions, etc.); his record of convictions by courts-martial indicates only minor offenses; his counsel was ineffective and his punishment too severe by current standards; his commander abused his authority in deciding to discharge him with a BCD; and drug and alcohol abuse impaired his ability to serve.  He also incorrectly argues that he was illegally denied a request for a board hearing through improper command influence; that counsel did not properly advise him about his right to a board; that he was denied the opportunity to appear before a board of officers; and that he was not given a rehabilitative transfer.  He provides a copy of his DD Form 214, Report of Separation From Active Duty.

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

He entered active duty on 20 June 1975.  Trained as a cook, his assignment history includes two tours of duty at Fort Hood, Texas, and an overseas tour in Korea.  He was promoted to specialist five (E-5) on 28 August 1977.  His awards include the Good Conduct Medal.

On 5 January 1981, the applicant was tried by a special court-martial and found guilty of stealing $263.00, the property of the U.S. Government, and unlawfully entering the dining facility of Battery A, 1st Battalion, 2d Air Defense Artillery.  He was sentenced to confinement at hard labor for 1 month (suspended until 12 July 1981).

On 24 June 1982, the applicant was tried by a special court-martial and found guilty of stealing two turkeys, eight veal cutlets, and some amount of fruit, all the property of the U.S. Government.  He was sentenced to confinement at hard labor for 3 months, forfeiture of $367.00 per month for 3 months, reduction in rank to private (E-1), and a bad conduct discharge.  The sentence was affirmed upon review.

The bad conduct discharge was executed on 10 January 1984 at Fort Hood, Texas.  The applicant had 8 years, 4 months, and 5 days of creditable active service and 76 days of time lost.

On 5 September 1990, the Army Discharge Review Board denied the applicant’s request for change in characterization and/or reason for discharge.

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 applicant was a cook who repeatedly stole foodstuffs from the dining facility in which he worked.  He was given a light, suspended punishment the first time he was tried and convicted by a court-martial.  Following his second conviction for the same offense, he was punished more firmly.

2.  Both of the applicant's trials by court-martial were warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the BCD appropriately characterizes the misconduct for which the applicant was convicted.  There is no evidence that the applicant's counsel did not offer an adequate defense.

3.  The applicant's chain of command was within its authority in preferring court-martial charges against him.  Since his chain of command properly opted for a judicial resolution of the applicant's misconduct, none of his statements concerning being denied a hearing before a board of officers is valid.

4.  The applicant's prior service was not so meritorious as to mitigate the BCD that he received.  

5.  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.

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

__cla____  __wtm__  __tbr ____  DENY APPLICATION

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

INDEX

CASE ID	AR2000037173	
SUFFIX		
RECON		
DATE BOARDED	20000907	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	19840110	
DISCHARGE AUTHORITY	AR635-200 CH3	
DISCHARGE REASON	A68.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.	142.00	
3.		
4.		
5.		
6.