MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           10 December 2002                  
	DOCKET NUMBER:   AR2002072134

	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. G. E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Ms. Celia L. Adolphi		Chairperson	
	Mr. Ted S. Kanamine		Member	
	Mr. Conrad V. Meyer		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 discharge be upgraded to allow him to use his educational benefits.

APPLICANT STATES:  In effect, he served over a year before he got into trouble, that he paid into the education program for that period and that the current characterization of his discharge precludes him from using his educational benefits.  

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

The applicant entered active duty on 1 April 1987, at age 19, and successfully completed basic combat training and advanced individual training. 

On 7 May 1989, a general court-martial found the applicant guilty of multiple specifications of larceny, receiving stolen goods, and assault.  The adjudged sentence, at that time, was reduction to pay grade E-1, forfeiture of all pay and allowances, confinement for 1 year, and a bad conduct discharge.  The discharge authority approved the sentence as adjudged.

The Army Court of Martial Review (ACMR) in accordance with Article 71(c) of the Uniform Code of Military Justice reviewed the applicant's case and affirmed the sentence.

The applicant appears to have failed to exercise his right to have his case considered by Court of Military Appeals within the requisite 30 days of notification of the findings of the ACMR.

On 23 May 1990, the unexecuted portion of the sentence to confinement was remitted and the bad conduct discharge was directed to executed.  The applicant was discharged on 1 June 1990.

The Department of Veteran's Affairs (VA) administrates entitlement of the Congressionally mandated educational benefits.  VA regulations state that to be entitled to the Montgomery GI Bill educational benefits a veteran had to have served 3 years, to contribute $100 per month for 12 months ($1200), and to receive an honorable discharge.  There is no provision for refunding of the contribution.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, and applicable law and regulations, it is concluded:

1.  The statutory authority under which this Board was created (Title 10, United States Code, section 1552, as amended) precludes any action by this Board that would disturb the finality of a court-martial conviction.
2.  Entitlement to VA benefits is not within the preview of this Board nor is it normally considered a basis for granting relief.

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

__CLA__  __TSK___  __CVM__  DENY APPLICATION

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

INDEX

CASE ID	AR2002072134	
SUFFIX		
RECON		
DATE BOARDED	20021210	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.68	
2.		
3.		
4.		
5.		
6.