MEMORANDUM OF CONSIDERATION

	IN THE CASE OF

	BOARD DATE:           24 October 2000 
	DOCKET NUMBER:   AR2000041279

	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. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson 		Chairperson	
	Mr. Edwin S. Castle		Member	
	Mr. John T. Meixell		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 a general discharge under honorable conditions. 

APPLICANT STATES:  In effect, that a fellow soldier stole a stereo and pawned it and he did not know that the stereo was stolen until after the fact.  He was thrown out of the military even though a fellow soldier admitted to stealing it.  He has been told that the soldier responsible for the incident only received rehabilitation.  Further, the applicant contends that he began being harassed after he entered his new car in the Martin Luther King Parade without the consent of his chain of command.  Additionally, he states that he needs veteran’s benefits.

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

That on 30 September 1971, he enlisted in the Regular Army for a period of 
3 years.  He served in military occupational specialty (MOS) 11B (Light Weapons Infantryman).  On 8 December 1971, he was assigned to Fort Hood, Texas.

On 4 January 1972, nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice was imposed against the applicant for disobeying a lawful order of a commissioned officer to secure his equipment in the supply room prior to going on leave.  His punishment included forfeiture of $20.00 pay.

On 20 July 1972, NJP was imposed against him for being absent without leave (AWOL) from his unit from 30 June-16 July 1972.  His punishment included reduction from pay grade E-2 to pay grade E-1 and 14 days extra duty.

On 27 November 1972, the applicant was convicted by a special court-martial (SPCM) of being disrespectful in language towards a superior noncommissioned officer on 16 August 1972.  He was sentenced to perform hard labor without confinement for 25 days and to forfeit $50.00 pay.

On 10 April 1973, a SPCM convicted him of stealing a Penncrest Turntable with speakers, the property of another soldier on 27 January 1973, and for being AWOL from his unit from 16-21 February 1973.  He was sentenced to confinement at hard labor for 3 months, forfeiture of $50.00 pay per month for 
3 months (suspended for 6 months) and to be discharged with a BCD. 

On 23 August 1973, the United States Court of Military Review affirmed the findings, and approved the sentence of the special court-martial.

On 12 April 1974, the applicant was separated under the provisions of chapter 11, Army Regulation 635-200, for other than desertion (court-martial) with a BCD.  He had served 2 years, 5 months and 22 days of active military service.  He also had 22 days lost time due to being AWOL.

On 7 July 1976, the ADRB denied the applicant’s request for clemency. 

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-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 order to justify clemency a military record 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 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.

3.  The applicant has provided no evidence to show that he was harassed, neither has he provided any basis for this Board to grant clemency.

4.  Eligibility for veteran's benefits does not fall within the purview of this Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.

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

__mkp___  __esc___  __jtm____  DENY APPLICATION

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

INDEX

CASE ID	AR2000041279	
SUFFIX		
RECON	YYYMMDD	
DATE BOARDED	20001024	
TYPE OF DISCHARGE	(BCD)	
DATE OF DISCHARGE	19740412	
DISCHARGE AUTHORITY	AR635-200, CH 11 	
REASON	A68.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.6800	
2.		
3.		
4.		
5.		
6.