MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           11 February 1999   
	DOCKET NUMBER:   AR1998012703

	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	
	Ms. Wanda L. Waller		Analyst	

The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Van B. Cunningham		Member	
	Mr. Carol Jo Suiter		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:  In effect, that his dishonorable discharge be upgraded to honorable.  

APPLICANT STATES:  That, his discharge should be upgraded to honorable because under current standards he would not have received a dishonorable discharge, his military service was pretty good, he served in Vietnam, and he has Post Traumatic Stress Disorder (PTSD).  He states that his court-martial convictions were isolated minor offenses, he was never AWOL and his ability to serve was impaired by his youth, limited education, deprived background, and family and financial problems.  He also states that he suffered religious and racial discrimination and that alcohol, drugs and psychiatric problems also impaired his ability to serve.  He goes on to state that the punishment was too severe, his command abused its authority and he was not treated for PTSD.  He contends that he was planning to make the Army a career and for 28 years his discharge has bothered him.  In support of his application, he submits a three page itemized list of the aforementioned contentions.               

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

The applicant was inducted on 24 January 1968.  He successfully completed his basic training at Fort Jackson, South Carolina, and received excellent conduct and efficiency ratings.

While in advanced individual training (AIT) at Fort Jackson, South Carolina, the applicant was convicted by special court-martial on 27 May 1968 of disobeying a lawful order from his superior NCO.  He was sentenced to be confined for
3 months and forfeiture of $63.00 pay per month for 3 months.  On 27 May 1968 the convening authority approved the sentence and suspended the confinement for 3 months.

Upon completion of AIT, he was transferred to Vietnam on 9 July 1968 for duty as a rifleman. 

On 31 December 1968, while in Vietnam, the applicant was convicted by general court-martial of committing assault upon a SGT by pointing a loaded (M-16) rifle at him.  He was sentenced to be dishonorably discharged from the service, forfeit all pay and allowances and to be confined at hard labor for 3 years. 

On 3 July 1969 the convening authority approved only so much of the sentence as provided for a dishonorable discharge, confinement at hard labor for
18 months and forfeiture of all pay and allowances.

The Court of Military Review found the findings and sentence as approved by the proper authority correct in law and fact.  However, it determined that on the basis of the entire record, the sentence should be modified to provide for a dishonorable discharge, confinement at hard labor for 15 months and forfeiture of all pay and allowances.  The Court of Military Review affirmed the findings and sentence as modified on 9 January 1970. 

Upon completion of his sentence to confinement, the applicant was restored to duty on 19 January 1970 pending completion of appellate review.

Records show he went AWOL from 12 February 1970 until 1 March 1970.  

The applicant’s appellate review was completed on 28 April 1970.

Accordingly, he was dishonorably discharged pursuant to the sentence of a general court-martial on 30 April 1970.  He had served 7 months and 15 days of total active service and had 450 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 offense charged.  Conviction and discharge were affected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

2.  The contentions of the applicant have been noted by the Board.  However, they are not supported by either evidence submitted with the application or the available evidence of record.  The applicant’s discharge does not warrant upgrading because of his undistinguished service, excessive amount of lost time, poor disciplinary record and the serious nature of aggravated assault.

3.  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.

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

___inw__  _vb_____  __cjs___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-12695/AR1998012703	
SUFFIX		
RECON	 	
DATE BOARDED	1999/02/11	
TYPE OF DISCHARGE	DD	
DATE OF DISCHARGE	1970/04/30	
DISCHARGE AUTHORITY	GCM	
DISCHARGE REASON	GCM	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  105.010		
2.  		
3.		
4.		
5.		
6.