MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           17 June l999              
	DOCKET NUMBER:   AR1999019839

	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. Loren G. Harrell		Director	
	Mr. Richard H. Allen		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Thomas A. Pagan		Member	
	Mr. Ernest W. Lutz, 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:  In effect, upgrade of his bad conduct discharge.  

APPLICANT STATES:  In essence, that the 15 year discharge review criteria does not apply in his case, that he has been a government employee, from which he is retired.  He gives several references and states that he had important military responsibilities while at Fort Gordon, Georgia.  

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

He enlisted in the Regular Army on 12 October 1976 for 3 years.  He had only completed 10 years of civilian education.  He completed basic combat training and advanced individual training at Fort Gordon, and was awarded military occupational specialty (MOS) 31M (Multichannel Communication Equipment Operator) on 10 March 1977.  There is no evidence of record that he was ever advanced (promoted) above pay grade E-1.  

On 18 March 1977, the applicant was administered nonjudicial punishment, under the provisions of Article l5, Uniform Code of Military Justice (UCMJ) for unlawfully striking another soldier.  His punishment included forfeiture of $180 pay and extra duty/restriction for 14 days.  There is no record that he appealed the punishment. 

On 13 May 1977, he was tried and convicted by a special court-martial, in accordance with his guilty plea, of violation of one specification of Article 121, UCMJ, in that he stole an AM-FM radio/cassette player, with a value in excess of $100.00, the property of another soldier on or about 14 March 1977.  His approved sentence was a bad conduct discharge.  

He was placed on excess leave, without pay or allowances, on 17 May 1977 to await the appellate review of his case.  

On 4 November 1977, Special Court-Martial Orders 60, Headquarters, U.S. Army Signal Center and Fort Gordon was published.  This order stated that the approved sentence of the special court-martial on 13 May 1977 had been affirmed pursuant to Article 86, UCMJ.  The provisions of Article 71[c] having been complied with, the sentence was to be executed.

On 16 November 1977, the applicant was discharged with a bad conduct discharge, under the provisions of Chapter 11, Army Regulation 635-200, by reason of sentence of a court-martial, other.  He was credited with 1 year, 
1 month and 5 days service, of which 185 days were spent on excess leave.  

There is no evidence of record that the applicant ever appealed his discharge to the Army Discharge Review Board within that board’s l5-year statute-of-limitation requirement for such appeals.  
The statutory authority under which this Board was created (Title 10, United States Code, Section 1552, as amended) precludes any action by this Board which would disturb the finality of a court-martial conviction.  The Board may, however, modify the sentence of the court-martial when clemency is warranted.

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, in this case, has failed to submit evidence that would satisfy the aforementioned requirement.

2.  Trial by court-martial was warranted by the gravity of the offenses charged.  

3.   Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterized the misconduct for which the applicant was convicted.

4.  The Board can find no evidence of active duty performance which would overcome the serious offense for which he was tried and convicted.  Further, his post service positions, apparently with the Federal Civil Service, while commendable, likewise do not overcome the serious misconduct for which he was discharged.  Therefore, clemency is not warranted in this case.  

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

___EWL_  __JLP___  __TAP __  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999019839	
SUFFIX		
RECON		
DATE BOARDED	19990617	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	19771116	
DISCHARGE AUTHORITY	AR635-200, C11	
DISCHARGE REASON	A39.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	144.00	
2.	A91.05	
3.	A92.25	
4.	A92.35	
5.	A92.37	
6.