MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           3 October 2002                  
	DOCKET NUMBER:   AR2002071461

	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. W. W. Osborn. Jr.		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Charles Gainor		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:  Upgrade of his bad conduct discharge (BCD) to general.

APPLICANT STATES:  That the sentence was too harsh, that he was convicted of a minor offense and that his overall record was not considered in characterizing his discharge.  His awards, schools, promotions and accomplishments warrant a better discharge.  The offense was not serious enough to warrant a BCD because he did not use force or violence, cause any bodily injury, abuse his position of trust or endanger the security of the nation or the welfare and safety of others.  In effect, the BCD stigmatizes him and keeps him from realizing his aspirations.  

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

The applicant enlisted and entered active duty on 16 September 1986.  He completed training as an infantryman and was assigned to Fort Ord, California.  He was advanced to pay grade E-4 on 1 October 1987 and was awarded the Army Achievement Medal for meritorious achievement during the period 1 May to 31 October 1987.  He was reduced to private first class on 9 January 1989.  

A general court-martial, convened on 12 June 1989 to try the applicant for two specifications of buying stolen property, a video cassette recorder worth about $849.00 and two car stereo radios worth a total of about $590.00 and one specification of larceny of the video cassette recorder, all property from the Army Air Force Exchange Services.  

The court-martial panel, consisting of officer and enlisted members, considered evidence including the applicant's sworn statement made to a Federal Police Investigator to the effect that, about 13 January 1989, he had met an unidentified blond haired individual in the audio section of the Post Exchange. This individual offered to get him a car radio for $100.00 to $200.00.  The applicant said he wanted nothing to do with stolen property.  The blond haired man said he had a relative who worked in the store and not to worry about it.  They met the next day outside the Exchange.  The applicant gave him $150.00.  The blond man entered the Exchange and returned in approximately 20 minutes with two sacks.  There was a car stereo in each.  The applicant kept the radios a few days, but then needed money so he sold the radios to two sergeants for $150.00 each.  Later, he went to the exchange to buy his wife a gift and  he encountered the same individual who offered to sell him the video cassette recorder for $500.00.  The applicant said he only had $100.00, so the guy sold him the video cassette recorder for that.  He could not give it to his wife, because he could not explain 

how he bought an almost $900.00 item for only $100.00.  So, he thought to return it to the Post Exchange and exchange it for a less expensive one.  He asked a fellow soldier to return it for him because he had some other errands to run.  The people at the Exchange kept the video cassette recorder.

On 29 July 1989 the court-martial panel found him guilty of the two specifications and the charge of buying stolen property and not guilty of larceny.

In deciding the sentence, the members of the court-martial panel considered the applicant's entire military record, including his advancement to pay grade E-4, his award of the Army Achievement Medal and his subsequent reduction in rank by nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), for using cocaine and marijuana.  They also considered the testimony of several noncommissioned officers who indicated that the applicant was hard working, professional and dedicated and that despite his recent indiscipline they would be pleased to have him in their units.  The sentence, adjudged on 29 June 1989, consisted of reduction to pay grade E-1 and a bad conduct discharge.

The convening authority approved the findings and sentence as adjudged.  The applicant was placed on appellate leave on 8 September 1989.

On 19 June 1990 the Army Court of Military Review affirmed the findings and sentence.  The applicant did not petition the Court of Military appeals within the allowed 60-day period.  On 30 August 1990, Article 71c, Uniform Code of Military Justice having been complied with, the general court-martial convening authority ordered the BCD executed. 

The applicant was discharged on 4 October 1990.

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 contentions relate to evidentiary and procedural matters which were finally and conclusively adjudicated in the court-martial appellate process, and furnish no basis for re-characterization of the discharge.

3.  There is no available evidence to show that the BCD has precluded the applicant from achieving his aspirations or that it is unjust if it does so.

4.  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.

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

__INW___  __WTM_  __CG  ___  DENY APPLICATION

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

INDEX

CASE ID	AR2002069233	
SUFFIX		
RECON		
DATE BOARDED	20021003	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	4 October 1990	
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	NC	
REVIEW AUTHORITY		
ISSUES         1.	105.01	
2.		
3.		
4.		
5.		
6.