MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:         

	BOARD DATE:            2 December 1998
	DOCKET NUMBER:   AC98-11370

	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:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. George D. Paxson		Member	
	Mr. John H. Kern		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 honorable and that his court-martial conviction be removed from his records. 

APPLICANT STATES: In effect, that he was convicted by a general court-martial of an offense for which he was not guilty of committing.  He further states that the trial was not fair because there was never any proof that he sold drugs and when he tried to prove his innocence, he was rejected.  He also states that when he tried to appeal his conviction, his lawyer was transferred to the Netherlands.  He continues by stating that even though he was inducted, he served diligently and to the best of his ability, and he had a perfect record until this event.  He goes on to state that he assumed that serving during the Vietnam era was for duty and country, only to find out that he would be set up to take a fall for someone else.  He contends that serving his country was not in his best interest but he would like the Board to prove him wrong. 

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

The applicant was inducted in Decatur, Georgia on 9 July 1970 and was transferred to Fort Jackson, South Carolina to undergo his basic training.  He successfully completed his basic training and was transferred to Fort Lee, Virginia to attend advanced individual training (AIT) as a shoe repairman.  He successfully completed his AIT with excellent conduct and efficiency ratings and was transferred to Fort Riley, Kansas.  He was promoted to the pay grade of E-3 on 9 February 1971.

On 11 March 1971, the applicant was arrested by criminal investigators at Fort Riley who had set up a narcotics buy using marked money.  After the transaction was completed, the applicant was arrested and found to have the money in his possession.  The individual making the purchase turned over a bottle containing Lysergic Acid Diethylamide (LSD) to the criminal investigators. 

On 14 April 1971, he was convicted by a summary court-martial of disobeying a lawful order.  He was sentenced to be reduced to the pay grade of E-2 and extra duty and restriction for 30 days.

The applicant was convicted by a General court-martial on 20 September 1971 of selling LSD.  His was sentenced to a dishonorable discharge, confinement at hard labor for 2 years, and a forfeiture of $90.00 per month for 2 years.  The convening authority approved only so much of the sentence as provided for a bad conduct discharge, confinement at hard labor for 1 year, and a forfeiture of $90.00 per month for 1 year. 

On 18 September 1973 the Court of Military Appeals denied the applicant’s petition for grant of review of his case.

Accordingly, he was discharged under other than honorable conditions on 16 November 1973 pursuant to his sentence by a general court-martial.  He had served 1 year and 9 months of total active service and had 293 days of lost time due to 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.  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.  The applicant’s contentions have been noted by the Board; however, they are not supported by either the evidence submitted with his application or the evidence of record. 

3.  The applicant was tried by a general court-martial for the offenses in which he was charged and he was afforded representation by counsel.  There is no evidence in the available records to suggest that his trial was unfair or that any of his appeal rights were violated.  Therefore, in the absence of evidence to the contrary, it must be presumed that the actions taken by the Department were appropriate. 

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

___rvo __  __gp____  __jhk ___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-11370	
SUFFIX		
RECON		
DATE BOARDED	1998/12/02	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	1973/11/16	
DISCHARGE AUTHORITY	GCM  	
DISCHARGE REASON	A68.00	
BOARD DECISION	NC	
REVIEW AUTHORITY		
ISSUES         1. A68.00		
2.		
3.		
4.		
5.		
6.