MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            20 June 2000
	DOCKET NUMBER:   AR2000039310

	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. Van B. Cunningham		Chairperson	
	Mr. James E. Anderholm		Member	
	Mr. Ernest W. Lutz, Jr.		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:  That his Bad Conduct Discharge (BCD) be upgraded to honorable.

APPLICANT STATES:  In effect, that when he first entered the Army he was informed that he should always carry out his last order first.  He goes on to state that he was told by his first sergeant to drive the truck and although he knew that he should not have gone to where he went with the supplies in his truck, he still participated.  However, before he could get back to the compound, Criminal Investigation Division (CID) officials confiscated the 900 cases of cigarettes and 16 radios from the Koreans whom he had delivered the goods to.  After he was arrested he was placed in the stockade and he has desired for the past 41 years to get his discharge upgraded because he now needs medical treatment.  In support of his application he submits an unofficial third party statement from a former veteran and elected official who attests to his good character and recommends that the applicant’s discharge be upgraded.  He also submits a copy of a deposition taken in conjunction with his trial by a general court-martial (GCM).

EVIDENCE OF RECORD:  The applicant's military records were destroyed in the 1973 fire at the National Personnel Records Center in St. Louis, Missouri which destroyed millions of service records.  However, information taken from a previous review of the applicant’s case by this Board as well as the documents submitted by the applicant show:

The applicant departed for Korea on 17 December 1955 and while serving as a truck driver in the rank of SP3, he was convicted by a GCM on 20 August 1957 of the wrongful appropriation of a government vehicle.  A review of the deposition provided by the applicant reveals that the applicant was the driver of a 2 ½ ton truck that signed the truck out for a destination he knew to be false and that he knowingly transported goods (cigarettes and radios) from the post exchange (PX) and delivered them, with the assistance of another soldier, to Korean Nationals for disposal on the black market.  At the time of the trial he entered a plea of guilty pursuant to a pre-trial agreement for a sentence which would not be in excess of a BCD, confinement at hard labor for 9 months, and total forfeitures of pay and allowances.

He was sentenced to a BCD, confinement at hard labor for 12 months, and total forfeitures.  However, pursuant to the pre-trial agreement, the convening authority approved only so much of the sentence as provided for a BCD, confinement at hard labor for 9 months, and total forfeitures.

The Army Board of Review affirmed the findings and sentence approved by the convening authority and on 13 December 1957, the unexecuted portion of the sentence was remitted.

Accordingly, he was discharged pursuant to the sentence of a GCM and was issued a BCD.  He had served 2 years, 11 months, and 26 days of total active service and had approximately 5 months and 2 days of lost time due to confinement.

He applied to this Board in 1959 for an upgrade of his discharge and contended at that time that he got along with everyone except for one sergeant who took sadistic delight in making his life miserable.  The Board at that time opined that the applicant had not challenged the trial by court-martial or the conviction that resulted therein and that his guilt of the offenses was established by his plea of guilty.  Additionally, there was no evidence that his plea was improvidently entered.  The Board denied his request for an upgrade of his discharge on 23 November 1959.

The Board also notes that there is an inquiry contained in the reconstructed records from the Florida Parole and Probation Commission inquiring into the applicant’s military service and indicates that the applicant was presently (in 1975) under pre-sentence investigation in the Palm Beach Circuit Court.  There is also a release signed by the applicant agreeing to the release of the requested information.

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.  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.

2.  The type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case.

3.  The applicant’s contentions and supporting documents have been noted by the Board.  However, they are not sufficiently mitigating when compared to seriousness of his offenses and his otherwise undistinguished record of service during such a short period of time.

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

___ja ___  __ewl___  ___vbc __  DENY APPLICATION

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

INDEX

CASE ID	AR2000039310	
SUFFIX		
RECON		
DATE BOARDED	2000/06/20	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	1957/12/13	
DISCHARGE AUTHORITY	Gcm	
DISCHARGE REASON	675	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  675	144.6800/A68.00/bcd	
2.		
3.		
4.		
5.		
6.