MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           12 December 2002
	DOCKET NUMBER:   AR2002070292

	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. Robert J. McGowan		Analyst	

  The following members, a quorum, were present:

	Mr. Roger W. Able		Chairperson	
	Ms. Karen Y. Fletcher		Member	
	Mr. Bernard P. Ingold		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 court-martial conviction be set aside and his Bad Conduct Discharge (BCD) be upgraded to an Honorable Discharge.

APPLICANT STATES:  "Change my guilty plea to innocent.  In order of a foreign property to be recovered so I won't be embeezelled (sic).  I'd have not just told the summary court-martial this at the time, but he stole my wallet first, then I took his.  Provided the seal on mine was never recovered.  In my investigation cream craw ordiance (sic) worth is my only position for my discharge bearing in coordiance (sic) BCMR.  I would like to have an upgrade to Honorable.  I was awarded my GED.  Foregoing forthwith in motion to forebear Tx State my injustice is the defendant stole my wallet first and I want my discharge upgraded about being retested."

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

He enlisted in the Regular Army for 3 years on 9 August 1979.  Following completion of all required military training at Fort Jackson, South Carolina, he was awarded military occupational specialty (MOS) 94B (Food Service Specialist) and reassigned to Germany.

Pursuant to his pleas, the applicant was convicted by a general court-martial (GCM) on 10 October 1980 for two specifications of being absent without leave (AWOL) from 18-26 February 1980 and from 26 February 1980 to 28 July 1980, and two specifications of larceny for stealing sums of $185 and $331 from two fellow soldiers.  He was sentenced to be reduced from Private (PVT/E-2) to Private (PVT/E-1), to forfeit all pay and allowances, to be confined for 18 months, and to be discharged with a BCD.  He was transferred to the United States Army Disciplinary Barracks (USDB), Fort Leavenworth, Kansas, for service of his sentence to confinement.  Forfeiture of $224.00 pay per month was suspended effective 14 January 1981.

On 28 May 1981, the United States Army Court of Military Review completed its appellate review of the applicant's case and affirmed the findings of guilty and the sentence.

On 15 October 1981, the applicant was separated with a BCD.  He had 6 months and 13 days of creditable service and 603 days of lost time due to AWOL and confinement.

The Military Justice Act of 1983 (Public Law 98-209), provides, in pertinent part, that military correction boards may not disturb the finality of a conviction by court-martial.

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.  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.

3.  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

__rwa___  __kyf___  __bpi___  DENY APPLICATION

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

INDEX

CASE ID	AR2002070292	
SUFFIX		
RECON		
DATE BOARDED	20021212	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	19811015	
DISCHARGE AUTHORITY	AR 635-200 C3	
DISCHARGE REASON	A60.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	105.0000	
2.	110.0000	
3.		
4.		
5.		
6.