MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           29 October 2002
	DOCKET NUMBER:   AR2002075197

	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. Carl W. S. Chun		Director	
	Ms. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Karol A. Kennedy		Chairperson	
	Mr. Thomas A. Pagan		Member	
	Ms. Barbara J. Lutz		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 at least a general discharge.

APPLICANT STATES:  That his previous record up to the incident had been acceptable to the Army.  He made restitution of all monies taken.  Since his discharge his behavior has been good and he has not been in any trouble.  As supporting evidence he provides a 22 January 1997 letter from the Department of Defense, Discharge Review Project Office, Office of the Naval Judge Advocate General.  The letter stated that pursuant to a class action lawsuit and subsequent settlement agreement, discharge upgrades could be provided to a former service member if the member received a less than fully honorable administrative discharge while in the inactive reserve after 19 April 1971.

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

He enlisted in the Regular Army on 28 October 1958.  

The applicant's Restoration Action Record indicates he admitted to four Article 15 punishments for missing bed check.

On 26 February 1960, the applicant was convicted by a summary court-martial of going from his appointed place of duty without proper authority.  He was sentenced to perform hard labor without confinement for 30 days and to forfeit $65.00 pay.

On 9 December 1960, the applicant was convicted pursuant to his plea by a general court-martial of stealing $150.00 U. S. dollars and about 660 Deutsche Marks of a value of about $157.14.  (While participating in military maneuvers, an officer was captured by military intelligence agents.  To make the mock capture more real, the agents confiscated the officer's personal property, including his wallet.  The applicant drove the officer to an assembly point.  Early the next day, the applicant found the wallet.  He started to turn it in but finally kept it and the money it contained.  Several days later he admitted taking the wallet and replaced the money he had spent.)  His adjudged sentence was to be discharged with a dishonorable discharge, to be confined at hard labor for one year, to forfeit all pay and allowances, and to be reduced to the lowest enlisted grade.  His approved sentence was to be discharged with a bad conduct discharge, to be confined at hard labor for 9 months, to forfeit all pay and allowances, and to be reduced to the lowest enlisted grade.

On 16 March 1961, the Board of Review, Office of the Judge Advocate General affirmed the findings and sentence.

On 24 May 1961, the applicant was discharged with a bad conduct discharge pursuant to his sentence by 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.  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 this requirement.

2.  It is noted that the applicant's record prior to the incident for which he was discharged included several instances of minor misconduct.  It is noted that he made restitution of the money he had taken.  However, the offense was serious and it appears that the approval authority considered the circumstances involved and his prior record when he reduced the applicant's adjudged sentence from a dishonorable discharge to a bad conduct discharge.  The applicant's good post-service is commendable but that factor does not warrant granting additional clemency.

3.  The supporting evidence provided by the applicant is not applicable to his case.  It applied to soldiers who received an administrative discharge (he received a punitive discharge) while in the inactive reserve (he was in the Regular Army) after 19 April 1971 (he was discharged in 1961).

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:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__KAK__  __TAP__  __BJL__  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2002075197	
SUFFIX		
RECON		
DATE BOARDED	2002/10/29	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	105.01	
2.		
3.		
4.		
5.		
6.