MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           30 June l999                  
	DOCKET NUMBER:   AR1999027397

	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:

	Mr. George D. Paxson		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. John P. Infante		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 (BCD).

APPLICANT STATES:  In essence, that he was not properly notified to appear for a hearing in connection with a review of his case by the Army Discharge Review Board (ADRB).  Therefore, he did not get a proper review of his discharge.  

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

He enlisted in the Regular Army on 23 October 1979 for 4 years.  He was trained in military occupational specialty (MOS) 12B (Combat Engineer) and received an enlistment bonus.  He was advanced to pay grade E-2 on 23 April 1980 and to pay grade E-3 on 23 October 1980.  After a period of service at Fort Campbell, Kentucky, he was assigned to duties in Panama on 19 May 1981.  While at Fort Campbell, he was convicted by a summary court-martial on 30 March 1981 of failing to go to his appointed place of duty and disrespectful language toward a sergeant, both incidents on 6 March 1981.  His sentence included reduction to pay grade E-1 and forfeiture of $200 pay.  

On 16 March 1982, contrary to his pleas, he was convicted by a special court-martial of one specification of violation of Article 121, Uniform Code of Military Justice (UCMJ) for theft of an unknown number of cans of beer and an unknown amount of candy, of some value, from the Army and Air Force Exchange Service on or about 25 July 198l; of one specification of violation of Article 90, UCMJ, for disobeying the lawful order of a commissioned officer on 26 January 1982; and of two violations of Article 91, UCMJ., for disobeying the lawful order of a superior noncommissioned officer (NCO) and use of disrespectful language to the same NCO on 26 January and 3 February 1982, respectively.

His approved sentence included the forfeiture of $250 pay per month for 
3 months, confinement at hard labor for 3 months and a BCD.   

On 21 June 1982, having served his period of confinement (through 15 June) in Panama, he was ordered returned to the United States.  On 24 August 
1982, he was placed on involuntary excess leave pending appellate review of his court-martial conviction.  

On 31 January 1984, Special Court-Martial Orders Number 17 was issued by the U.S. Army Armor Center and Fort Knox, Kentucky, announcing that the approved sentence imposed by the special court-martial on 16 March 1982 in the applicant’s case was affirmed under the provisions of Article 66, UCMJ.  The provisions of Article 71c, UCMJ, having been complied with, the sentence would be duly executed.  

On 27 February 1984, the applicant was discharged with a BCD, in accordance with Army Regulation 635-200, Section IV, Chapter 3, as the result of court-martial, other.  He was credited with 4 years, 1 month and 5 days active service (of which 553 days was spent on excess leave), and 92 days lost time.  

On 9 January 1987, the ADRB conducted a records review of his case and denied his request for upgrade of his discharge.

In October 1995, the applicant requested another review of his case by the ADRB.  It is unclear exactly what happened, but it appears that he was not notified that since he already had a records review of his case, he was only entitled to a personal hearing appearance before the ADRB.

As the result of his application to this Board on 25 September 1997, the applicant was sent a letter on 20 May 1999, advising him of an opportunity to have a personal appearance before a travel panel of the ADRB scheduled to be in Chicago, Illinois, on 11 June 1999.  The applicant failed to respond and his case was administratively closed by the ADRB on 17 June 1999 since he already had a records review of his discharge by that board.  His case was then referred to this Board for further review action.  

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 sentence may be modified by the Board based upon a finding of clemency 

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and 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 applicant has received the appropriate reviews by the ADRB to which he is entitled, to include a records review of his case in January 1987, and an offer to appear, in person, before the ADRB in his home town on 11 June 1999.  

5.  There is no basis found in his military records, nor has the applicant provided any information or justification upon which the Board could base a finding of clemency in his case.  

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

__GDP__  __AAO__  __JPI____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999027397	
SUFFIX		
RECON		
DATE BOARDED	19990630	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	19840227	
DISCHARGE AUTHORITY	AR635-200, CH3	
DISCHARGE REASON	A68.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	144.00	
2.	A91.05	
3.	A92.17	
4.	A92.25	
5.	A92.35	
6.