MEMORANDUM OF CONSIDERATION

		IN THE CASE OF:  

		BOARD DATE:           7 October 2003            
		DOCKET NUMBER:  AR2003087048

	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	
	Mrs. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Ms. Shirley Powell		Member	
	Mr. Robert Duecaster		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.

APPLICANT STATES:  That it is his strong desire to reenlist.  His bad conduct discharge bars him from reenlisting.  He states that he has matured in the years since his discharge.  Then, he was just an undisciplined child and did not care about anything but himself.  Now, he has a 2-year old son who makes him realize there is more to life.

The applicant provides a supporting statement, dated 26 December 2002, from a friend.  She stated she met the applicant while he was in the Army.  He had a lot of pride about being in the Army.  The only thing wrong was that he was immature and was easily influenced.  She tried to be a positive influence but she guessed he did not trust her judgment.  He made a lot of immature choices but now he knows how to be a man and make the right decisions in life.

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

He was born on 19 January 1979.  He enlisted in the Regular Army on 18 August 1998.  He completed basic training and advanced individual training and was awarded military occupational specialty 19D (Cavalry Scout).

On 3 March 2000, the applicant, pursuant to a pre-trial agreement, pled guilty     to and was convicted by a general court-martial of being absent without leave (AWOL) from on or about 30 July 1999 to on or about 12 October 1999 and to  13 specifications of larceny.  (He had stolen a bank card from the barracks room of a fellow soldier on 13 July 1999 and used it on 12 occasions over the next      9 days to withdraw a total of approximately $4,000.00 from that soldier's bank account.)  The applicant was sentenced to a forfeiture of all pay and allowances, to confinement for 11 months, and to be discharged from the service with a bad conduct discharge.

On 29 September 2000, the U. S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence.

On 7 February 2001, the U. S. Court of Appeals for the Armed Forces denied the applicant's petition for grant of review.  

On 16 November 2001, the applicant was discharged with a bad conduct discharge pursuant to his sentence by court-martial.

Title 10, U.S. Code, section 1552, as amended, precludes any action by this Board which would disturb the finality of a court-martial conviction.  Section 

1552(f) states that, with respect to records of courts-martial tried or reviewed under the Uniform Code of Military Justice, the Board's action may extend only to action on the sentence of a court-martial for purposes of clemency.  

Army Regulation 635-200 governs the separation of enlisted personnel.  In pertinent part, it states that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the soldier’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 clearly inappropriate.  A general discharge is a separation from the Army under honorable conditions.  It is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

Army Regulation 601-210 prescribes eligibility criteria governing the enlistment of persons into the Regular Army and the U. S. Army Reserve.  In pertinent part, it states that persons with a bad conduct or dishonorable discharge have a reenlistment disqualification that cannot be waived.

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.  The Board notes that the applicant was well over 20 years old at the time of the incidents which led to his court-martial.  The Board also notes that the applicant did not commit a one-time offense of larceny – he unlawfully used the other soldier's bank card 12 times over a 9-day period.  

3.  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.

4.  The Board is cognizant of the fact the applicant's post-service conduct has been good.  However, that factor does not warrant granting the relief requested.

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

__fne___  __sp____  __rd____  DENY APPLICATION

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

INDEX

CASE ID	AR2003087048	
SUFFIX		
RECON		
DATE BOARDED	20031007	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	Mr. Chun	
ISSUES         1.	105.01	
2.		
3.		
4.		
5.		
6.