MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:                            
	DOCKET NUMBER:   AR1998012728

	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. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Fred K. McCoy		Chairperson	
	Mr. Raymond V. O’Connor		Member	
	Mr. Stanley Kelley		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 a general discharge (GD). 

APPLICANT STATES:  In effect, that he is currently homeless and prays that the Board will consider his case even though he has no new evidence to submit.  (He apparently is referring to new evidence since his April 1975 review by the Army Discharge Review Boards (ADRB)).

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

That on 30 July 1970, he enlisted in the Regular Army for a period of 
3 years and training in military occupational specialty (MOS) 11B (Light Weapons Infantryman).  He served in the Republic of Vietnam (RVN) from 
10 January-19 September 1971.  He received his General Education Development (GED) high school certification while in the RVN.  

The applicant’s DA Form 20 (Enlisted Qualification Record) shows that while he was assigned in the RVN he was absent from his unit without leave (AWOL) from 23-25 July 1971.

On 8 September 1971, the applicant was convicted in the RVN by a special court-martial of violating a lawful regulation; for failure to go to his appointed place of duty at the time prescribed; and for failure to repair.  He was sentenced to reduction from pay grade E-3 to pay grade E-1, confinement at hard labor for 3 months and forfeiture of pay.

On 22 September 1971, the applicant was assigned to the USA Correctional Training Facility, Fort Riley Kansas.  He completed his retraining and was assigned to Fort Hood, Texas on 17 November 1971.  His conduct rating was satisfactory and his efficiency rating was excellent while assigned to Fort Riley.

On 17 May 1972, the applicant was convicted by a special court martial at Fort Hood of communicating a threat, and for committing an assault upon another service member by striking him in the face with his fist and foot.   The charge further stated that by this action he intentionally inflicted grievous bodily harm upon a fellow service member and fractured his jaw.  He was sentenced to receive a BCD, confinement at hard labor for 169 days, and forfeiture of pay.

On 21 June 1972, the sentence was approved.  The applicant was to be confined at the US Army Disciplinary Barracks Fort Leavenworth, Kansas or, elsewhere as competent authority directed.

On 30 August 1972, the United States Court of Military Review affirmed the finding, and approved the sentence of the special court-martial.

On 14 September 1972, the applicant was denied restoration to duty and he was also denied clemency.

On 18 September 1972, the applicant was separated under the provisions of chapter 11, Army Regulation 635-200, for other than desertion (court-martial) with a BCD.  He had served 1 year, 6 months and 25 days of active military service.  He also had 208 days lost time due to being in confinement.  The applicant is entitled to the following decorations and awards:  The Army Good Conduct Medal, the National Defense Service Medal, the Army Service Ribbon, and the Overseas Service Ribbon.

His records also show that at some point in his career, he accepted nonjudicial punishment (NJP) under the provisions of the Uniform Code of Military Justice for disobeying a noncommissioned officer (NCO).  The NJP action, to include the date is not contained in his records.

On 21 April 1975, the ADRB denied the applicant’s request for an upgrade of his discharge.  The available records to not indicate that the applicant applied to the Army Board for Correction of Military Records prior to this review.

The statutory authority under which this Board was created (Title 10, United States Code, section 1552, as amended) precludes any action by this Board which would disturb the finality of a court-martial conviction.

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 clemency a military record 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.

2.  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.

3.  Further, the Board concluded that the nature of the applicant’s offenses that were committed while he was assigned to a combat zone of operations were serious offenses.

4.  Current homelessness status is unfortunate, but provides no basis to upgrade his discharge or to grant clemency.

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

FKM_____  RVO____  SK_____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1998012728	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19991216	
TYPE OF DISCHARGE	(BCD)	
DATE OF DISCHARGE	19720918	
DISCHARGE AUTHORITY	AR635-200, CH 11 	
REASON	A04.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.0400	
2.		
3.		
4.		
5.		
6.