MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           15 August 2000                   
	DOCKET NUMBER:   AR2000044575

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Thomas D. Howard, Jr.		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Ms. Gail J. Wire		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 be upgraded to a general discharge.

APPLICANT STATES:  That he knows his actions were wrong.  He knows now that he should have walked away from the situation because he did enjoy the military and had intended to stay in.  Recently he has spoken with a Navy recruiter and was told that with an upgrade to general discharge the Navy could grant him a waiver to reenlist.  He provides two letters attesting to his good character and his Certificate of Release or Discharge from Active Duty, DD Form 214, as supporting evidence.

EVIDENCE OF RECORD:  The applicant's military records from his last period of service are not available.

The applicant had prior service in the Regular Army from 30 August 1989 through 16 December 1991 when he was separated under the provisions of Army Regulation 635-200, chapter 13 for unsatisfactory performance with a general discharge under honorable conditions.  His commander had noted in his recommendation for separation that the applicant had continued to be a discipline problem.

On 28 February 1996, the applicant reenlisted in the Regular Army.  

On 8 May 1996, the applicant pleaded guilty to and was convicted by a general court-martial of disrespect towards a noncommissioned officer (NCO); assaulting an NCO and assault consummated by a battery.  He was sentenced to be reprimanded, to forfeit all pay and allowances, to be confined for 18 months and to be discharged with a bad conduct discharge.

The applicant was released from confinement on 8 November 1997 and was on excess leave from that date until his discharge on 12 March 1999 with a bad conduct discharge pursuant to his sentence by court-martial.  Appellate review action is not available.

Title 10, U.S. 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 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.
2.  Trial by court-martial was warranted by the gravity of the offense 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.  The Board concludes that there are no mitigating circumstances, such as previous honorable service, that would warrant granting the relief requested.

3.  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

__tdh___  __aao___  __gjw___  DENY APPLICATION

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

INDEX

CASE ID	AR2000044575	
SUFFIX		
RECON		
DATE BOARDED	20000815	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	105.01	
2.		
3.		
4.		
5.		
6.