MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           09 JULY 2002                   
	DOCKET NUMBER:   AR2002070081

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Ms. Joann Langston		Chairperson	
	Mr. Thomas B. Redfern III		Member	
	Mr. Roger W. Able 		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 general.  

APPLICANT STATES:  It has been 16 years since he received his bad conduct discharge.  He was a young man then and made a mistake.  The applicant submits a statement from his pastor and from his next door neighbor attesting to his good character and his community spirit.  

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

The applicant entered on active duty on 7 June 1982, completed training, and in December 1982 was assigned to Fort Eustis, Virginia as a radio teletype operator.  In March 1984 he was assigned to a signal battalion in Germany.   

On 31 January 1985 the applicant received nonjudicial punishment under     Article 15, UCMJ, for failing to go to his place of duty.  On 6 March 1985 he received nonjudicial punishment for failure to go to his place of duty.

General Court-Martial Order Number 64, Headquarters, 21st Support Group, dated 31 July 1985, shows that the applicant was arraigned, tried, and found guilty of larceny of a camera with lens, a necklace, and a man’s ring, of a total value of about $1,017.00, between 4 April and 7 April 1985.  He was sentenced to a bad conduct discharge, confinement for one year, forfeiture of all pay and allowances, and reduction to the lowest enlisted grade.  On 27 June 1985 the applicant was transferred to the Army Correctional Activity at Fort Riley, Kansas. On 31 July 1985 the sentence was approved.  The findings of guilty and the sentence were affirmed on 20 November 1985.  

General Court-Martial Order Number 220, Headquarters, United States Army Correctional Activity, Fort Riley, Kansas, dated 20 March 1986, directed that the bad conduct discharge be executed.

The applicant was discharged on 7 April 1986 under the provisions of Army Regulation 635-200, chapter 3, section IV.    

The maximum punishment authorized by the Manual for Courts-Martial by a general court-martial for larceny of property other than military property of a value of more than $100.00, is a dishonorable discharge, 5 years confinement, and forfeiture of all pay and allowances.

Army Regulation 635-200 provides for the separation of enlisted personnel.  Paragraph 3-11 of that regulation states that a soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review 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.  The applicant’s bad conduct discharge was appropriate in view of the offense committed.  The Board notes that the applicant could have received a dishonorable discharge and sentenced to 5 years confinement.

2.  The applicant's contention that he was young and immature at the time is not sufficiently mitigating to warrant relief. The Board notes that the applicant had completed his training, had served at Fort Eustis for more than a year, and had    3 years in the Army at the time of his court-martial.  

3.  While the Board has taken cognizance of the applicant's good post-service conduct, this factor does not warrant the relief requested.

4.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

5.  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 that requirement.

6.  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

__JL____  __TBR_     __RWA __  DENY APPLICATION

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

INDEX

CASE ID	AR2002070081	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020709	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.