MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           19 April 2000                  
	DOCKET NUMBER:   AR1999031142

	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. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. James P. Huber		Chairperson	
	Mr. Elzey J. Arledge, Jr.		Member	
	Mr. Van B. Cunningham		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:  Reconsideration of his earlier applications to correct his record by upgrading his bad conduct discharge to honorable.  He also requests a personal appearance before the Board.

APPLICANT STATES:  That his ability to serve was impaired by his youth, his immaturity, his 10th grade education and his limited mental abilities as evidenced by his AFGT score of 28.  He feels that he was taken advantage of because the would not help the authorities gather evidence to convict others of drug distribution.  He believes the ABCMR considered only the derogatory information in his military record was considered and points out that he completed basic and advanced individual training and “my permanent assignment for 11/2 years” without an offense of record.  He cites specific documents from his military record to show his training and schools completed, his assignments, his AFQT, and that he was restored to duty during the appellate process and served without any problems.  He also contends that he was not properly advised of his rights nor was he “given the opportunity to comment in person upon the adjudication of my last application for discharge upgrade. He states that he has never had a chance to explain his “side of the situation as the information would be of benefit to the final decision in my case.

The applicant also provides seven letters of support as well as copies of a marriage certificate, birth certificates for two sons and the family’s social security cards.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memoranda prepared to reflect the Board's previous considerations of the case on 4 June 1980 and 14 November 1984 (COPIES ATTACHED).

The applicant’s submissions are new evidence and argument that requires Board consideration.

The  letters of support and the family documents are accepted as an implied argument that the applicant’s post service adjustment and conduct taken by itself or in conjunction with his overall record of service warrants the requested relief.

A letter from the president of a truck line states that the applicant was an independent contractor associated with the firm from September 1997 through December 1998 and that he conducted himself in a professional, reliable and honest manner.  

Another businessperson states that the applicant has installed floor coverings  on “a number of jobs” and that the results were always professional and timely.

A  floor covering dealer writes that he has known the applicant for 10 years and that the applicant has worked hard as an installer and has been honest and fair.

An individual states that he has know the applicant for 10 years and knows him to be hard-working and trustworthy and that he fulfills his responsibilities in a timely manner.

The mother of an employee of the applicant writes that she has known the applicant for 15 years and knows him to be upright, business-like, hard-working, honest, fair and trustworthy.

A carpet dealer states that the applicant is hardworking and honest and would be an asset to any business. 

The applicant’s wife writes that he has been a wonderful husband and a good provider.

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 applicants claims of impairment because of youth, immaturity and limited intellectual ability are noted but he clearly demonstrated the capacity for honorable by his completion of training and approximately 11/2 years of apparently offense free service. 

2.  The positive aspects of the applicant’s service are acknowledged, but the are far outweighed by the offenses to which he pled guilty before a general court-martial and sentenced to a punitive discharge.

3.  The letters of support and the other evidence of the applicant’s post service adjustment and conduct are noted.  However these factors, taken in concert with the positive aspects of his service, are not so exceptionally meritorious as to warrant upgrading the bad conduct discharge he received for possession and transfer of a 325.46 grams of marijuana and communicating a threat to kill a commissioned officer.

4.  There is no statutory or regulatory right to a formal hearing.  The Board receives over 15,000 applications each year, but normally grants fewer than two dozen formal hearings a year.  Formal hearings are granted only when the Board determines that a case is so complex, the records so incomplete, that only sworn testimony can provide the necessary information.

5.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

6.  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

___JPH__  __EJA__  ___VBC__  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999031142	
SUFFIX		
RECON		
DATE BOARDED	20000419	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	105.06	
2.		
3.		
4.		
5.		
6.