APPLICANT REQUESTS:  That his dishonorable discharge be upgraded to a general discharge under honorable conditions.

APPLICANT STATES:  He makes no statement.  The Memorandums of Consideration are not available and the case is reviewed de novo.

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

He was inducted into the Army on 12 December 1967.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 11C (Infantry Indirect Fire Crewman).  He arrived in Vietnam on 28 May 1968.

On 12 July 1968, the applicant was convicted by a special-court martial of disobeying a lawful order from his superior officer to remain with the company’s forward element and continue in active combat and disobeying a lawful order to proceed to the mess hall to perform kitchen police duty.  He was sentenced to confinement at hard labor for 6 months (later suspended), to be reduced to pay grade E-1 and to forfeit $69 pay for six months.

On 21 October 1968, the applicant was convicted by a general court-martial of willfully disobeying a lawful order from his superior officer to report for transportation to the company’s forward element.  Per the applicant’s pre-trial agreement, he was sentenced to a dishonorable discharge, confinement at hard labor for 2 years and to forfeit all pay and allowances.

On 9 April 1969, the U.S. Army Board of Review affirmed the sentence.

The applicant was discharged on 16 June 1969, with a dishonorable discharge pursuant to his court-martial sentence.  He had completed 7 months and 15 days of creditable active service and had 325 days of lost time.

On 24 July 1969, clemency was approved.

This Board denied the applicant’s request for an upgraded discharge on            15 November 1972 and again on 31 May 1978.

Title 10, U.S. 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 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.

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

3.  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

                       DENY APPLICATION

                             				Loren G. Harrell
					 	Director