MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            27 January 2000                  
	DOCKET NUMBER:    AR1999029516

	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.

	Ms. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright 		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. Elzey J. Arledge, Jr.		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 an under other than honorable conditions discharge.  

APPLICANT STATES:  In effect, that he requested an upgrade from the Army Discharge Review Board (ADRB) and it was denied.  He contends that he does not feel his discharge was inequitable, that he takes full responsibility for his actions but he does not feel the charges deserve a life long exile from serving in the military.  He goes on to state that he has a current Military Entrance Processing Station physical, a clean police record and favorable endorsements from the chain of command of the 103d Field Artillery Brigade, Rhode Island Army National Guard (RIANG) and they are willing to accept him despite the actions of his past.  He further states that he has been informed that a National Guard Bureau (NGB) Waiver is needed for enlistment and the NGB will not consider this unless his character of service is upgraded.  In support of his application, he submits a letter of explanation dated 13 July 1999, a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), the Staff Judge Advocate Recommendation dated 23 December 1993, the Special
Court-Martial (SPCM) Order dated 6 September 1994, separation orders dated 
13 October 1994, an undated letter from the applicant seeking reinstatement with the Armed Forces, two character reference letters, a letter of acceptance for enlistment into the 103d Field Artillery, RIANG dated 7 February 1999, two exception to policy letters to allow the applicant enlistment into the RIANG dated 
6 February 1999 and 9 February 1999, NGB Form 22-3 (Request for Waiver) dated 23 April 1999, Standard Form 93 (Report of Medical History) dated 13 April 1999, Standard Form 88 (Report of Medical Examination) dated 13 April 1999, DD Form 369 (Police Record Check) and Standard Form 86 (Questionnaire for National Security Positions).     

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

The applicant enlisted under the delayed entry program and entered active duty on 16 July 1992 for a period of 3 years.  He successfully completed his training and was transferred to Fort Bragg, North Carolina, for duty as a power generation equipment repairer.  

On 16 April 1993 nonjudicial punishment was imposed against the applicant for wrongful appropriation of personal property of a value in excess of $100.

On 14 October 1993 the applicant was convicted by a SPCM of wrongful appropriation, breaking restriction, obtaining services under false pretenses, and damaging military property.  He was sentenced to a bad conduct discharge, confinement for 2 months, and forfeiture of $500 pay per month for 6 months.  

On 18 January 1994 the convening authority approved only so much of the sentence as provides for a bad conduct discharge, confinement for 2 months, and forfeiture of $500 pay per month for 3 months.  

On 29 March 1994 the Court of Military Review affirmed the findings of guilty and the sentence.  His appellate review was completed on 6 September 1994.

Accordingly, the applicant was discharged pursuant to the sentence of a special
court-martial on 19 October 1994.  He was issued a Bad Conduct Discharge Certificate.  He had served 2 years, 1 month and 16 days of total active service and had 47 days lost time due to confinement.

On 25 June 1999 the Army Discharge Review Board denied the applicant’s request for upgrade of his discharge to under other than honorable conditions. 

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 affected in accordance with applicable law and regulations.

2.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The applicant’s contentions were noted by the Board.  However, they are not sufficiently mitigating to warrant upgrading his discharge given the seriousness of the charges against him and his overall undistinguished record of service.

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 the aforementioned 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____  SK______  EJA_____  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999029516	
SUFFIX		
RECON		
DATE BOARDED	20000127	
TYPE OF DISCHARGE	(BCD)	
DATE OF DISCHARGE	19941019	
DISCHARGE AUTHORITY	AR 635-200 Chapter 3 Section IV	
DISCHARGE REASON	Court-martial order	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.0200	
2.		
3.		
4.		
5.		
6.