MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:             7 May 2002                  
	DOCKET NUMBER:    AR2002068098

	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. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Mr. Kenneth W. Lapin 		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 honorable.

APPLICANT STATES: That he was only an accessory to the larceny and received a BCD, while the person responsible for the larceny was allowed to stay in the service.  He indicates that he has just now realized his appellate rights.  He remembers his attorney saying that he could petition to have his discharge reviewed.  He indicates he is submitting in support of this application a record of his court-martial at Fort Carson, Colorado.  The court-martial record was not submitted.

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

During the period 30 March 1977 to 30 January 1978, the applicant was a member of the Army Reserve.

On 31 January 1978, he enlisted in the Regular Army.  He completed his required training and was awarded military occupational specialty 63B (Wheeled Vehicle Mechanic).  He was advanced to private first class, pay grade E-3, effective 1 September 1979. 

On 8 January 1980, in consonance with his plea, he was convicted by a Special Court-Martial of larceny of a television and two stereophonic speakers from a fellow soldier.  His sentence included confinement at hard labor (CHL) for           3 months, a forfeiture of $296 pay per month for 3 months and reduction to pay grade E-1 and a BCD.

On 12 February 1980, the appropriate authority approved only so much of the sentence as provided for a BCD, CHL for 3 months, a forfeiture of $224 pay per month for 3 months and reduction to pay grade E-1.

On 24 March 1980, he was placed on excess leave.

On 27 October 1980, the Army Court of Military Review affirmed the findings of guilty and the sentence.

On 2 November 1981, the sentence was ordered executed.

On 24 November 1981, he was discharged with a BCD under paragraph 11, Army Regulation 635-200, as result of a court-martial conviction.  His records show that he had 3 years, 7 months and 9 days of creditable service and 83 days of lost time and 611 days of excess leave.

Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 3-7 provides that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be inappropriate.

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.  The applicant’s service did not then meet and does not now meet the standards of honorable service as defined in Army Regulation 635-200.  Therefore, the characterization of the applicant’s current discharge is appropriate considering all the facts of the case.  There also is no apparent error, injustice, inequity, or change in policy or standards on which to base recharacterization of his discharge to honorable.

3.  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

4.  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

_sac____  _jtm____  _kwl____    DENY APPLICATION

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

INDEX

CASE ID	AR2002068098	
SUFFIX		
RECON		
DATE BOARDED	20020507	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144	
2.		
3.		
4.		
5.		
6.