MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           2 October 2001                   
	DOCKET NUMBER:   AR2001060515

	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. Joyce A. Hall		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Ms. Karol A. Kennedy		Member	
	Mr. Richard T. Dunbar		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.

APPLICANT STATES:  In effect, that he was very young and was easily influenced by the older guys in the platoon.  He was told that his BCD could be upgraded to a general discharge under honorable conditions.

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

The applicant was born on 9 July 1962.  He enlisted in the Regular Army on 
29 January 1980, for 3 years.  He was assigned to Company D, 15th Battalion, 
4th Training Brigade, United States Army Armor Center, Fort Knox, Kentucky for basic combat training.  He completed the required training and was awarded Military Occupational Specialty 11C10 (Infantryman).  The highest grade he achieved was pay grade E-1.

On 24 March 1980, the applicant requested discharge under the provisions of Chapter 10, for the good of the service.  

On 25 March 1971, the separation authority did not approve the applicant’s request for discharge under the provisions of Army Regulation 635-200, chapter 10 for the good of the service.

On 29 April 1980, the applicant was convicted by a special court-martial of two specifications of willfully disobeying a lawful order, for extortion, for two specifications of intent to commit larceny, for concealment of a felony, for receiving stolen property and for breaking house arrest.  His was sentenced to a forfeiture of $299.00 pay per month for 6 months, confinement at hard labor 
for 2 months and to be discharged from the service with a BCD.

On 3 June 1980, the convening authority approved the sentenced and forwarded 
the record of trial to The Judge Advocate General of the Army for review by a 
Court of Military Review.  The applicant was confined in the United States 
Disciplinary Barrack, Fort Leavenworth, Kansas, pending completion of the
appellate review.

On 22 July 1980, the United States Army Court of Military Review, affirmed the findings of guilty and the sentence.  The applicant’s record does not indicate that he petitioned the United States Court of Military Appeals for a grant of review.

On 30 October 1980, the applicant was discharged, in pay grade E-1 under the provisions of Army Regulation 635-200, chapter 11, as a result of a court-martial, with a BCD.  He completed 6 months and 3 days of active military service. 

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 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.  Trail 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 contention of the applicant that he was young has been noted.  However, the applicant met entrance qualification standards to include age.  There is no evidence that he was any less mature than other soldiers of the same age that successfully completed their military service obligation. 

4.  The Board also considered the applicant’s allegation that his BCD could be or would be upgraded.  An upgrade is not automatic and there is no evidence which shows that the applicant applied to the Army Discharge Review Board for a discharge upgrade with the 15 year statute of limitations.

5.  Trial by court-martial was warranted by the gravity of the offenses charged.  The 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.

6.  The applicant has failed to provide any basis for the Board to grant clemency in his case.

7.  Therefore, 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___  __kak___  __rtd___  DENY APPLICATION

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

INDEX

CASE ID	AR2001060515	
SUFFIX		
RECON		
DATE BOARDED	20011002	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	19801030	
DISCHARGE AUTHORITY	AR635-200, Chapter 11	
DISCHARGE REASON	A68.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.6800	
2.		
3.		
4.		
5.		
6.