MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           20 May 2003                   
	DOCKET NUMBER:   AR2002081630

	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	
	Mr. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. Melvin H. Meyer		Chairperson	
	Ms. Deborah S. Jacobs		Member	
	Mr. Jose A. Martinez		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 (BCD) be upgraded to fully honorable.

APPLICANT STATES:  He is seeking employment and Department of Veterans Affairs benefits, which require an honorable discharge.

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

He enlisted in the Army National Guard (ARNG) on 6 December 1978.  On 5 March 1980 the applicant entered active duty as a result of his being involuntarily ordered to active duty due to his failure to attend unit training with his ARNG unit.

On 18 September 1980, the applicant was charged with violation of Article 130, Uniformed Code of Military Justice (UCMJ), in that he wrongfully and unlawfully entered property of the United States.  It had been reported that the applicant broke the glass door of the Post Exchange (PX), and entered the PX through the broken door with the intent to commit larceny.  When the applicant later sought treatment for a cut on his leg, he was questioned by the Military Police and reported that he had witnessed another man break into the PX, and the man who had committed the crime slashed his leg with a piece of broken glass.  The Criminal Investigation Division (CID) then did a laboratory analysis of the footprints left at the crime scene and found that they matched the applicant’s tennis shoes.

The applicant was also charged with stealing one six-pack of beer, one package of batteries, one cigarette lighter, one camera, and one jar of dried beef.

The applicant was then tried by a Special Court-Martial, where he pled and was found guilty of both specifications.  The military judge sentenced the applicant to confinement at hard labor for 45 days, a reduction from pay grade E-2 to E-1, and a BCD.  The convening authority approved the sentence, but suspended the execution of the BCD for 9 months, at which time it would be remitted if not sooner vacated.

Subsequently, Article 72, UCMJ, proceedings were initiated to determine whether the suspension of the applicant’s sentence to a BCD should be vacated.  The applicant was accused of breaching the peace on 8 February 1981; of disobeying a lawful order on 9 February 1981; and of breaking restriction on 10 February 1981.  The applicant voluntarily admitted to have committed all of those offenses.  As such, the suspension of the applicant’s sentence to a BCD was vacated and he was issued a Bad Conduct Discharge Certificate on 29 May 1981.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1.  The applicant has not contended that there was any error in the process of his court-martial.  Nonetheless, the Board reviewed the applicant’s court-martial and discharge to ascertain whether any error was made during the proceedings.  No error was found.

2.  The only matter of equity raised by the applicant is his inability to find employment or obtain veterans benefits with his BCD.  While it is regrettable that the applicant is having difficulty in these areas, neither problem has any bearing on the appropriateness of his discharge.

3.  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

____dsj __  ___jam__  ___mhm   DENY APPLICATION

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

INDEX

CASE ID	AR2002081630	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20030520	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	105.01	
2.		
3.		
4.		
5.		
6.