MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:           11 December 2001
	DOCKET NUMBER:   AR2001060810

	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. Carolyn G. Wade		Analyst	

  The following members, a quorum, were present:

	Ms. Karol A. Kennedy		Chairperson	
	Mr. Ronald E. Blakely		Member	
	Mr. Thomas E. O'Shaughnessy, 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 it was a mistake to court-martial him for offenses that could have been handled at the unit/company level.  He believes his court-martial was unjust and the punishment too harsh for the misconduct committed.  

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

He enlisted in the Regular Army on 20 October 1972 for a period of 3 years.  He enlisted for the United States Army Station of Choice Enlistment Option - Europe and training in military occupational specialty (MOS) 94B (Food Service Specialist).  Following completion of all military training, he was awarded MOS 94B and was assigned to Germany.

The applicant was absent without leave (AWOL) from his place of duty on 7 November 1973 (0530-0610) and 10 November 1973 (0530-1105).  On 13 November 1973, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for these offenses.  His punishment consisted of forfeiture of $88.00 pay (suspended) and 7 days' extra duty.

On 25 March 1974, the applicant accepted NJP for failing to go at the time prescribed to his appointed placed of duty (guard mount), being disrespectful in language toward a noncommissioned officer (NCO), and for wrongfully communicating a threat to an NCO.  His punishment consisted of forfeiture of $88.00 pay.

On 8 June 1974, the applicant accepted NJP for twice failing to go to his appointed place of duty (mess hall) at the time prescribed.  His punishment consisted of forfeiture of $88.00 pay.

On 20 March 1975, the applicant was convicted by a special court-martial at Bad Kreuznach, Germany, of unlawfully striking a commissioned officer and being drunk and disorderly in the hallway and parking lot adjacent to the NCO club.  He was sentenced to reduction in rank to private first class/E-3, restriction for 2 months, and forfeiture of $280.00 pay per month for 2 months.  The sentence was approved on 4 April 1975.

The applicant was AWOL from his unit from 16- 25 June 1975.  On 8 and 10 July 1975, he failed to go to his appointed place of duty, the Mess Hall.  On 14 July 1975, he behaved with disrespect toward a commissioned officer and failed to get out of bed and report for duty in the Mess Hall as ordered by that officer.

On 12 September 1975 at Baumholder, Germany, the applicant was tried for the above offenses by a special court-martial.  He was convicted of disrespect, disobedience, and failure to go to his appointed place of duty on 8 and 14 July 1975, and sentenced to reduction to private/E-1, forfeiture of $100.00 pay per month for 6 months, confinement at hard labor for 3 months, and a BCD.  The sentence was adjudged on 12 September 1975 and approved on 4 November 1975, except for the BCD.

On 18 May 1976, appellate review of the applicant's conviction was completed and the sentence was affirmed.  The BCD was ordered executed.

On 25 May 1976, the applicant was discharged after completing 3 years, 4 months, and 11 days of active military service and accruing 85 days of lost time.

There is no indication in the available records that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11, of that regulation, in effect at the time, provided, in pertinent part, for the separation of personnel with punitive discharges.  It provided that a soldier would be given a BCD pursuant only to an approved sentence to a general court-martial or special court-martial.  The appellate review process must be completed and the affirmed sentence ordered duly executed.

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.  The Board noted the applicant’s contentions that his court-martial was too harsh and should have been handled at the unit/company level.  The Board also noted that the applicant was given three opportunities to correct his behavior through NJP at the company level; however, for whatever reason, he chose not to do so.

3.  The Board also noted that the applicant had previously been convicted by a special court-martial for striking an officer and being drunk and disorderly.

4.  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.

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

_KAK___  __REB___  __TEO__  DENY APPLICATION

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

INDEX

CASE ID	AR2001060810	
SUFFIX		
RECON		
DATE BOARDED	20011211	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	19760525	
DISCHARGE AUTHORITY	AR 635-200, c11	
DISCHARGE REASON	Court-martial	
BOARD DECISION	DENY	
REVIEW AUTHORITY	Director	
ISSUES         1.	144.9405	
2.		
3.		
4.		
5.		
6.