MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            21 January 1999
	DOCKET NUMBER:   AC98-13076
                                              AR1998012260

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Ms. Karen J. Newsome		Chairperson	
	Mr. Fred N. Eichorn		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:  That his bad conduct discharge be upgraded to a general discharge. 

APPLICANT STATES:  That he served his country faithfully during the Vietnam era and that he made mistakes during his period of drug addiction for which he has paid dearly.  He goes onto state that his discharge was supposed to be upgraded and yet has to done.  He also states that he needs his discharge to be upgraded so that he can take advantage of his veterans’ benefits. 

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

The applicant enlisted on 12 June 1973 for a period of 3 years and training as a clerk typist.  He successfully completed his training and was transferred to Germany on 15 November 1973.

On 22 March 1974 nonjudicial punishment (NJP) was imposed against the applicant for the wrongful and unlawful possession of hashish and one tablet of mandrax.  His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of pay, and 14 days of extra duty.

On 19 September 1975 he was convicted by a general court-martial of three specifications of selling heroin.  He was sentenced to a bad conduct discharge, confinement at hard labor for 5 years, forfeiture of all pay and allowances, and reduction to the pay grade of E-1.

On 19 November 1975 the convening authority approved only so much of the sentence as provided for a bad conduct discharge, confinement at hard labor for 13 months, total forfeiture of pay and allowances for 13 months, and reduction to the pay grade of E-1.  He was transferred to Fort Leavenworth to serve his confinement.

The applicant was placed on excess leave pending his appellate review and on 16 April 1978 he was restored to duty pending completion of his appellate review. 
The decision of the Board of Military Review was overturned by the Court of Military Appeals and the case against the applicant was remanded back to The Judge Advocate General.  Meanwhile, the applicant was assigned to Fort Dix, New Jersey.

On 13 October 1978 he was convicted by a summary court-martial of being AWOL from 6 September to 25 September 1978.  His sentence consisted of a forfeiture of pay and restriction for 45 days.

On 27 August 1979 NJP was imposed against the applicant for attempting to escape from custody.  His sentence consisted of a forfeiture of pay and restriction to the personnel control facility for 30 days, and extra duty for 30 days.
On 11 April 1979 the Court of Military Review again reviewed the applicant’s appeal and affirmed the findings and sentence of the general court-martial convening authority.

Accordingly, on 13 December 1979, the applicant was discharged with a bad conduct discharge pursuant to the sentence of a general court-martial.  He had served 5 years, 6 months, and 26 days of total active service and he had 340 days of lost time due to AWOL and confinement.

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.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

2.  The type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case.

3.  The applicant’s contentions have been noted by the Board and appear to be without merit.  There is no evidence in the available records to suggest that his discharge was directed to be upgraded by a higher court and considering the seriousness of the charges against him and his otherwise undistinguished record of service, an upgrade of his discharge is not warranted.

4.   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 the aforementioned requirement.

5.  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

__kn____  ___jpi ___  ___fe ___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-13076/AR1998012260	
SUFFIX		
RECON	 	
DATE BOARDED	1999/01/21	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	1979/12/13	
DISCHARGE AUTHORITY	GCM 	
DISCHARGE REASON	GCM	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  105.0100		
2.		
3.		
4.		
5.		
6.