MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            29 May 2003 
	DOCKET NUMBER:   AR2002081686

	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. Deyon D. Battle		Analyst	

The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. Lester Echols		Member	
	Mr. Frank C. Jones		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 appeal to correct his military records by upgrading his bad conduct discharge (BCD) to a general or an honorable discharge. 

APPLICANT STATES:  In effect, that he was young and immature and did not understand the consequences of his actions.  He states that he is trying to prove to his family that he is older and wiser now.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records, which were summarized in a memorandum prepared to reflect the Board's previous consideration of the case (AC92-07551) on 12 August 1992.

The applicant’s contentions are new letters from friends, family members and coworkers attesting to his good post-service conduct that require Board consideration.

The regulation provides further guidance for reconsideration requests that are received more than 1 year after the Board’s original consideration or after the Board has already reconsidered the case.  In such cases, the staff of the Board will review the request to determine if substantial relevant evidence has been submitted that shows fraud, mistake in law, mathematical miscalculation, manifest error, or if there exists substantial relevant new evidence discovered contemporaneously with or within a short time after the Board’s original decision.  If the staff finds such evidence, the case will be resubmitted to the Board.  If no such evidence is found, the application will be returned without action.  In this case the staff of the Board finds that the letters attesting to the applicant’s post-service conduct are relevant new evidence to warrant resubmission of his case to the Board.

On 30 August 1974, he enlisted in the Army for 2 years in the pay grade of E-1.  He successfully completed his training as a chemical operations specialist.

Only 2 months after his enlistment, between December 1974 and July 1976, nonjudicial punishment (NJP) was imposed against the applicant on eight separation occasions.  He was punished for three incidents of failure to repair, five incidents of being absent from his place of duty and one incident of possession of marijuana.

On 5 October 1976, the applicant was convicted by a general court-martial, pursuant to his pleas, of stealing (by means of force) $9.00 from a fellow soldier.  His sentence consisted of a BCD, confinement at hard labor for 1 year and a forfeiture of all pay and allowances.  

On 18 November 1976, the convening authority approved only so much of the sentence as provided for a BCD, confinement at hard labor for 10 months and a forfeiture of all pay and allowances.

The United States (US) Army Court of Military Review affirmed the findings of guilty and the sentence on 16 March 1977.

The applicant petitioned the US Court of Military Appeals for a grant of review. On 26 September 1979, the US Court of Military Appeals affirmed the decision of the US Army Court of Military Review.  Accordingly on 28 November 1979, he was discharged under the provisions of Army Regulation 635-200, chapter 11, as a result of a court-martial conviction.  He was issued a BCD.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 of that regulation states, in pertinent part, that a member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed.

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 actions by the Army in this case were proper, and there is no doubt to be resolved in favor of the applicant.

2.  The applicant's contention that he was young and immature at the time is not sufficiently mitigating to warrant relief.  The Board notes that the applicant was 19 years old at the time of his first offense and he was 21 years old when he was convicted by a general court-martial for stealing.

3.  While the Board has taken cognizance of the applicant's age and his good post-service conduct; neither of these factors, either individually or in sum, warrant the relief requested.  The type of discharge that he received is appropriate considering his overall record of service.

4.  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.

5.  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.

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

__fcj ____  ___ls ___  ___le ___  DENY APPLICATION

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

INDEX

CASE ID	AR2002081686	
SUFFIX		
RECON	AC92-07551	
DATE BOARDED	2003/05/29	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	19791128	
DISCHARGE AUTHORITY	AR 635-200, Chapter 11	
DISCHARGE REASON	675	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  678	144.6803	
2.		
3.		
4.		
5.		
6.