MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:  11 July 2000
	DOCKET NUMBER:  AR2000037407

	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. Stephanie Thompkins		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond J. Wagner		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. John Saputo		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 discharge be upgraded.

APPLICANT STATES:  That he believes that some sort of arrangement was agreed upon to allow the other enlisted men to be tried separate from him and they were placed in modification training camp and returned to active duty and he was the only one to receive confinement.  He further states that for more than 5 years he applied for an upgrade but was not aware of the form required for applying until now.  He submits a statement in support of his request.

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

He enlisted in the Army as a private (E-1) on 24 January 1972.  He attained the rank of private first class (E-3) on 2 June 1972.

He was punished under Article 15, Uniform Code of Military Justice (UCMJ) on 6 February, 15 February and 22 February 1973, for failure to report to his place of duty.  His punishments included reduction to pay grade private (E-2), forfeiture and restriction.

He was punished under Article 15, UCMJ on 4 April 1973, for wrongful possession of hashish.  His punishment included forfeiture and restriction.

On 27 August 1973, the applicant was tried by special court-martial for burglary with intent to commit larceny and larceny.  The applicant plead and was found guilty and sentenced to reduction to E-1, forfeiture, and confinement at hard labor for 4 months and discharge from the service with a bad conduct discharge.

On 12 November 1973, the confinement at hard labor in excess of 3 months was suspended until 4 February 1974.

On 1 July 1974, special court-martial orders affirmed the applicant’s bad conduct discharge and forfeiture of pay.

He was discharged on 17 July 1974, under the provisions of Army Regulation 635-200, paragraph 11-2, Under Other Than Honorable Conditions.  He had a total of 2 years, 3 months and 8 days net active service and 76 days lost time.

On 3 April 1980, the Army Discharge Review Board found his discharge to be proper and equitable and denied his request for upgrade.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 11 of that regulation, in effect at the time, provided, in pertinent part, for the separation of personnel because of unsatisfactory performance or conduct (or both). 

Paragraph 3-7 of this regulation provides that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be inappropriate.

Title 10, United States Codes, section 1552, as amended, precludes any action by this Board that 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 view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge.  He has not shown error, injustice, or inequity for the relief he now requests.  

2.  The Board notes the applicant’s contention that he received confinement and the other soldiers involved were returned to active duty.  However, there is no evidence in the record nor has the applicant submitted any evidence indicating that the other soldiers involved in the incident for which he was convicted and discharged received lighter sentences.  The Board further notes that the courts normally judge each individual on the merits of his own individual case and presumes such was done in this case.

3.  Trial by special court-martial in this case was warranted by the serious nature of the multiple offenses charged, and the sentence is commensurate with the misconduct of which the applicant was convicted.

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

___rw__  ___ra___  __js____  DENY APPLICATION

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

INDEX

CASE ID	AR2000037407	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000711	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	A70	
2.		
3.		
4.		
5.		
6.