MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           23 March 2000
	DOCKET NUMBER:  AR1999030599

	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. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Ms. Shirley L. Powell		Chairperson	
	Mr. Roger Able		Member	
	Mr. James Anderholm		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 a general discharge.

APPLICANT STATES:  In effect, that his intentions were to remain in the military until he retired.  He also states that he loved the Army and the Army was good to him until his involvement in black marketing.  He further states that he humbly pleaded for a general discharge based on his military record prior to his incident. He goes on to state that a general discharge would be appropriate in assisting him in receiving a higher retirement percentage plan in his current civilian job which would better support his family.  In support of his application he submits a copy of his DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States).

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

The applicant entered active duty on 30 July 1981 and served as an administrative specialist.  He continued to serve until he was honorably discharged on 1 July 1984 in order to reenlist.  He reenlisted on 2 July 1984.

He was convicted by a general court-martial on 28 January 1986 on two specifications of violating a lawful general regulation by wrongfully transferring duty-free goods and by failing to account for those items.  His sentence consisted of a forfeiture of pay, a reduction to the pay grade of E-1 and a Bad Conduct Discharge.  The sentence was adjudged on 28 January 1986 and approved on 27 February 1986.

On 3 June 1986, the applicant was ordered on involuntary excess leave for an indefinite period pending appellate review of his court-martial conviction.

On 27 October 1986, the Court of Military Review affirmed the findings and sentence as provided by the convening authority.

Based on a petition for review granted by the United States Court of 
Military Appeals, the United States Court of Military Review, on 22 February 1989, set aside a finding of guilty and dismissed one of the specifications.

On 26 July 1989, the applicant was discharged from the Army pursuant to the sentence of a general court-martial and was issued a Bad Conduct Discharge
Certificate.  

The applicant applied to the Army Discharge Review Board (ADRB) on 26 May 1999.  However, his case was ineligible for review by the ADRB due to his conviction by a general court-martial.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-11 of that regulation provides that a soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special 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.  The Board noted the applicant’s contentions; however, there is no evidence in the available records, and the applicant has provided no evidence to show that his discharge was unjust and should be upgraded.

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 regulation.

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 the aforementioned 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:

SLO____  RA______  JEA____  GRANT

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999030599	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000323	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	19890726	
DISCHARGE AUTHORITY	AR 635-200, chapter 3	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  110 (BCD)		
2.		
3.		
4.		
5.		
6.