MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:    

	BOARD DATE:            25 February 1999                  
	DOCKET NUMBER:   AR1998013850

	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. Deborah L. Brantley		Analyst	

  The following members, a quorum, were present:

	Mr. James M. Alward		Chairperson	
	Ms. Jennifer L. Prater		Member	
	Mr. Samuel Calderon		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 bad conduct discharge be upgraded to a general discharge.

APPLICANT STATES:  He feels the discharge was punitive in nature because he was not mentally competent at the time.

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

He enlisted and entered active duty on 19 November 1968 at the age of 20 with 12 years of formal education.  The applicant successfully completed basic and advanced individual prior to being assigned to Vietnam as an infantryman in July 1969.

He was promoted to pay grade E-3 on 22 July 1969, shortly after his arrival in Vietnam.

In October 1969 the applicant was convicted by a general court-martial of assaulting a Vietnamese civilian female, disrespect towards an officer, and failing to obey a lawful order.  In his defense the applicant’s counsel noted the applicant was “subject to dizziness, high temperatures, headaches and weakness” resulting from malaria” and that on the day of the incident (26 September 1969) the applicant indicated he “felt dizzy and was sweating” and did not fully recall the events which resulted in the charges before the court.

The applicant was found guilty of the three charges and sentenced to 14 months confinement, total forfeiture, reduction to pay grade E-1 and a bad conduct discharge.  The conviction was adjudged on 30 October 1969 and approved on 
8 December 1969.  In February 1970 the applicant was denied parole.  The parole officer’s recommendation noted the applicant’s adjustment to confinement had been poor and he spent a considerable amount of time in administrative segregation as a result of violating prison rules.

In addition to the court-martial, the applicant had also been punished on two separate occasions under Article 15 of the UCMJ.  In May 1969 he was punished for failing to be at his assigned place of duty and failing to follow an order.  In July 1969 he was punished for being AWOL for 1 day.

On 4 November 1970 the applicant’s bad conduct discharge was implemented.  At the time of his discharge he had 10 months and 27 days of creditable service and more than 372 days of lost time due to AWOL and confinement.

In 1972 and 1975 the applicant petitioned the Army Board for Correction of Military Records to upgrade his discharge noting, in effect, that his discharge was unfair because at the time his medical and mental condition was such that he “simply did not know what [he] was doing most of the time.”  Neither request was seen by the Board but were closed administratively because “insufficient evidence has been presented to indicate probable material error or injustice.”

The Manual for Courts-martial states that the maximum authorized punishment for the offensives the applicant was convicted of is a dishonorable discharge, confinement for 6 years, total forfeiture of pay, and reduction to pay grade E-1.  Separation by sentence of a general or special court-martial is not an administrative separation but is considered a punitive discharge.

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 applicant has submitted neither probative evidence nor a convincing argument in support of the request.

2.   The record shows that the applicant was successful during basic and advanced individual training, including airborne training, which tends to indicate that he was capable of satisfactory service in spite of his contention that he suffered from diminished mental capacity.

3.  Additionally, the Board notes the applicant had disciplinary problems prior to and following the incidents that resulted in his court-martial which supports a conclusion that the applicant’s behavior in September 1969 which resulted in his court-martial was not likely the result of any underlying medical condition.

4.  Trial by court-marital 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.

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 the aforementioned 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

__jma___  ___jlp__  ___sc_____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1998013850	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990225	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1. 110.00		
2.		
3.		
4.		
5.		
6.