MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            22 June 2000
	DOCKET NUMBER:   AR2000038209

	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	
	Mr. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Roger Able		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 records be corrected to show that he was discharged in the pay grade of E-4.

APPLICANT STATES:  In effect, that he was unjustly reduced to the pay grade of E-1 as a result of trial by court-martial and that the extenuating circumstances that led to his conviction were not his fault.

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

He enlisted on 17 June 1974 for a period of 3 years and assignment to the 101st Airborne Division at Fort Campbell, Kentucky.  He successfully completed his training and was transferred to Fort Campbell on 1 November 1974 for duty as a light weapons infantryman.

Nonjudicial punishment was imposed against him on at least two occasions for being AWOL from 2 December to 3 December 1974, for failure to go to his place of duty and being disrespectful in language towards a superior NCO.  He was eventually advanced to the pay grade of E-4 on 25 July 1976.

On 24 August 1976 the applicant’s commander initiated a recommendation to bar the applicant from reenlistment based on his disciplinary record, his demonstrated lack of motivation and poor attitude towards the Army.  The applicant acknowledged that he was advised of the basis for the commander’s recommendation and elected not to submit a statement in his own behalf.  Accordingly, the appropriate authority approved the recommendation on 31 August 1976.

On 24 May 1977 he was convicted by a summary court-martial of two specifications of failure to go to his place of duty and disobeying a lawful command from a commissioned officer not to leave the company area.  He was sentenced to a reduction to the pay grade of E-1, a forfeiture of pay, and extra duty.

On 7 July 1977 he was honorably discharged in the pay grade of E-1 due to the expiration of his term of service (ETS).  He had served 3 years of total active service and had 21 days of lost time due to AWOL and confinement.

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’s reduction to the pay grade of E-1 as a result of trial by     court-martial was in accordance with applicable laws and regulations and there are no indications of any violations of the applicant’s rights.   

2.  He was afforded a trial by court-martial whereas he had the opportunity to assert his innocence with or without the assistance of counsel.  It must be presumed that he failed to submit sufficient evidence or testimony to convince the members of the court-martial of his innocence.

3.  Likewise, the applicant has failed to show through the evidence submitted with his application or the evidence of record that he was unjustly convicted at a trial by court-martial or that the punishment he received was disproportionate to the charges against him.

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 that 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

___ls ___  ___ao___  ___ra ___  DENY APPLICATION

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

INDEX

CASE ID	AR2000038209	
SUFFIX		
RECON		
DATE BOARDED	2000/06/22	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000/CORR 214	
2.  319	131.0900/ADV IN GRD	
3.		
4.		
5.		
6.