MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 31 October 2002
         DOCKET NUMBER: AR2002070989

         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. Rosa M. Chandler		Analyst

The following members, a quorum, were present:

Mr. Curtis L. Greenway		Chairperson
Ms. Regan K. Smith		Member
Mr. Donald P. Hupman, 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)

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APPLICANT REQUESTS: In effect, that the guilty verdict and punishment of his 11 December 1997 summary court-martial (SCM) be set aside and that his rank be restored. In the alternative, he requests a thorough investigation and the preferral of charges against all other implicated soldiers.

APPLICANT STATES: That the incident is an example of selective prosecution by his battalion commander. Several of the soldiers involved were protected and not punished. One soldier committed perjury by providing a sworn statement during the investigation, only to recant during the actual SCM. He adds that he was originally offered nonjudicial punishment (NJP), but when he indicated that others, including officers, were involved, the NJP was withdrawn and he was court-martialed. He adds that he now works for the Department of Justice as a corrections officer and wants to become a US Marshal. In support of his request, he submits: a statement written for the Board's consideration; NJP and SCM proceedings; a Commander's Inquiry memorandum; two sworn statements; and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period of service from 17 June 1987 through 2 March 1998.

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

That prior to the period of enlistment under review, the applicant served honorably in the Regular Army (RA) for 7 years, 8 months and 17 days. On 3 March 1995, while assigned to Korea, he renlisted in the RA for 3 years, for his previous military occupational specialty (MOS) 11B (Infantryman), and in pay grade E-5. On 22 June 1995, he was assigned to Company C, 1st Battalion, 504th Parachute Infantry Regiment, 82nd Airborne Division, Fort Bragg, North Carolina.

On 29 October 1997, the applicant was informed that he was being considered for NJP under the provisions of Article 15, Uniform Code of Military Justice, for conspiring with another soldier to commit larceny by removing ammunition from the Company D, 1st Battalion, 504th Parachute Infantry Regiment Ammunition Supply, and for dereliction in the performance of his duties by failing to follow established ammunition protocols and stealing military property of a value of about $150.00 on 2 October 1997. The applicant did not receive the subject NJP.

On 31 October 1997, a commander's inquiry was initiated into the unlawful removal, storage, and transportation of Government ammunition. The investigating officer determined that, in September 1997, Company D conducted a day/nightfire range and the entire draw of ammunition was not expended. The

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armorer (a specialist four) instructed the ammo detail to turn-in the dunnage and excess live rounds. However, the ammunition supply point would accept only the dunnage, because it was the end of the fiscal year and all drawn ammunition was to be expended. The live rounds were returned to the armorer to be secured in the arms room in Company D until they could be properly disposed.

On 2 October 1997, prior to the applicant deploying to the Joint Readiness Training Center, Fort Polk, Louisiana, the armorer illegally issued him 620 rounds of 5.56 ball and 100 rounds of 5.56-tracer ammunition. The applicant placed the ammunition in a black civilian bag and loaded it into his privately-owned vehicle for his wife to transport to his off post residence. On 8 October 1997, while preparing for a company arms room inspection, a lieutenant discovered that the armorer had given the applicant the ammunition. After the armorer was ordered to retrieve the ammunition, he contacted the applicant who had his wife return the ammunition to the armorer. The investigating officer determined that the armorer's main goal was to get rid of the ammunition due to an upcoming inspection and that he demonstrated gross negligence when he gave the ammunition to the applicant. The investigating officer also determined that the applicant was going to use the ammunition at an off-post range, therefore, he sought to personally gain from the incident at the expense of the Government, and that his actions as an noncommissioned officer (NCO) demonstrated gross misconduct. As an NCO, he should have known that receiving ammunition without the proper documentation was in violation of Army Regulations, and that transporting government ammunition in a privately-owned vehicle was unauthorized. The recommendation was that the specialist be removed as the armorer for Company D and that appropriate Uniform Code of Military Justice actions be taken against both the applicant and the armorer.

On 4 November 1997, court-martial charges were preferred against the applicant for violating a lawful general regulation by wrongfully possessing military ammunition while on Fort Bragg, and for stealing military property (ammunition) of a value of $345.00, the property of Company D, 1st Battalion, 504th Parachute Infantry Regiment, 82nd Airborne Division, on 2 October 1997.

On 1 December 1997, the applicant was officially notified that SCM proceedings would be held on 15 December 1997. The applicant was advised that the basis for these proceedings was to inquire into the charges brought against him on 4 November 1997. He was also advised of the rights available to him.

The applicant was convicted by a SCM of violating a general regulation by possessing military ammunition in his privately-owned vehicle, and of larceny of military property. He was sentenced to reduction from pay grade E-5 to pay grade E-4.

On 2 March 1998, the applicant was honorably separated under the provisions of chapter 4, Army Regulation 635-200, by reason of completion of required active service. He had completed 10 years, 8 months and 16 days of creditable active military service and he had no recorded lost time.

The applicant's record contains DD Forms 214 that shows two overlapping periods of service. The first DD 214 covers RA service from 18 June 1985 through 4 April 1988 and the second DD Form 214 covers RA service from 17 June 1987 through 2 March 1998.

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. All of the applicant's contentions involve issues which should have been adjudicated at his SCM.

3. This Board found no evidence of arbitrary or capricious actions by the applicant's chain of command. The applicant had in his possession stolen Government property that he later returned to Government control and, as a result, he was court-martialed.

4. This Board is not an investigative agency nor does it have the personnel to conduct such inquiries. If, in fact, the applicant had proof that others were involved in the larceny of government property or that there were other discrepancies involved, it should have been disclosed during the commander's inquiry or during the court-martial appeals process.

5. Correction of the overlapping periods of service shown on the applicant's DD Forms 214 falls outside the scope of the applicant's request for the correction of his military record; therefore it will not be considered.

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

__clg___ __rks___ __dph___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002070989
SUFFIX
RECON
DATE BOARDED	20021031
TYPE OF DISCHARGE	(HD)
DATE OF DISCHARGE	19980302
DISCHARGE AUTHORITY	AR 635-200, Ch 4
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	144.0300
2.	106.0000
3.
4.
5.
6.