MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            18 January 2001
	DOCKET NUMBER:   AR2000047342

	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. John N. Slone		Chairperson	
	Mr. Melvin H. Meyer		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:  That his bad conduct discharge (BCD) be upgraded to a general discharge.

APPLICANT STATES:  In effect, that he did not know how to react to the racism he saw in the Army at the time and he did not know that he was an alcoholic at the time.  He also states that upon his transfer to Germany all of the white soldiers serving in the pay grade of E-4 were promoted to the pay grade of E-4 and the blacks were not.  He further states that there was also a lot of political upheaval and he got caught up in it all.

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

He enlisted in Baltimore, Maryland on 25 September 1970 for a period of 2 years and was transferred to Fort Dix, New Jersey to attend his basic training.   

On 10 November 1970 nonjudicial punishment (NJP) was imposed against him for being absent without leave (AWOL) from 1 November to 7 November 1970.  His punishment consisted of a forfeiture of pay, extra duty and restriction.

He completed his basic training and was transferred to Fort Leonard Wood, Missouri to undergo his advanced individual training (AIT).  It appears that he completed his AIT as a clerk typist and received orders for assignment to the Pacific Theater (USARPAC) with a report date to the overseas replacement detachment on 27 March 1971.  

On 19 April 1971 NJP was imposed against him for being AWOL from the overseas replacement station at Fort Lewis, Washington from 27 March to 3 April 1971.  His punishment consisted of a forfeiture of pay.

The applicant was then transferred to Germany on 28 April 1971 and was assigned as a clerk in a military police battalion.  He was promoted to the pay grade of E-3 on 6 May 1971, shortly after his arrival.

On 15 March 1972 he was convicted by a special court-martial of being disrespectful in language towards a noncommissioned officer (NCO), disobeying a lawful order from an NCO, being disrespectful towards a commissioned officer, disobeying a lawful order from a commissioned officer and for stealing money.  He was sentenced to confinement at hard labor for 2 months, reduction to the pay grade of E-1 and a reprimand.

On 26 May 1972 he was convicted by a general court-martial of housebreaking, wrongfully opening mail matter and larceny of mail matter.  He was sentenced (pursuant to a plea bargain agreement) to confinement at hard labor and a bad conduct discharge.

The United States Army Court of Military Review affirmed the findings and sentence of the general court-martial on 21 September 1972.

The applicant served his sentence at the United States Disciplinary Barracks at Fort Leavenworth, Kansas and was discharged pursuant to the court-martial sentence on 11 December 1972.  He was issued a BCD and had served 1 year, 5 months and 1 day of total active service and had approximately 259 days of lost time due to AWOL and confinement.

On 4 August 1976, while incarcerated in a correctional facility in Maryland, the applicant applied to the Board for an upgrade of his BCD.  He cited at that time that he desired an upgrade of his discharge in order to obtain better employment and education and to provide a better life for his family.  The Board denied his request for an upgrade on 23 February 1977.

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.  Although the Board does have the authority to affect the punishment given by a court-martial conviction, it does not have the authority to disturb the finality of such a conviction.  The Board believes that the type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case.

3.  The Board notes the applicant’s contentions; however, they are not supported by either the evidence submitted with his application or the evidence of record.  Given the seriousness of the charges against him, and his overall record of service, the discharge appears to be appropriate under the circumstances. 

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

___mm__  ___js____  __jtm____  DENY APPLICATION

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

INDEX

CASE ID	AR2000047342	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/01/18	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	1972/12/11	
DISCHARGE AUTHORITY	AR635-200, PARA 11-1b	
DISCHARGE REASON	GCM	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  675	144.6800/A68.00	
2.		
3.		
4.		
5.		
6.