MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:                              
	DOCKET NUMBER:   AC

	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	
	M		Analyst	

  The following members, a quorum, were present:

	Mr. 		Chairperson	
	Mr. 		Member	
	Mr. 		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 a General Discharge.

APPLICANT STATES:  That alleged criminal activity was not investigated to the fullest; that he had ineffective counsel; that the alleged body of the victim was not produced; that his combat duty was not taken into account.  He also submits a Detroit police report showing no current convictions, a drivers license and social security card, voter registration card, a traffic record check showing no record of traffic violations, and a job application as a taxi cab driver.

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

That he enlisted in the Regular Army on 15 November 1968 for a 3 year term of service.  After completing airborne training and training as a radio operator, he was assigned to an infantry division in Vietnam on 21 June 1969.  He completed his tour in Vietnam on 10 June 1970 and was reassigned to an aviation battalion at Fort Rucker, Alabama.  For service in Vietnam, he was awarded the Vietnam Service Medal with one bronze service star, the Vietnam Campaign Medal, an Army Commendation Medal, the Republic of Vietnam Gallantry Cross with Palm, and 2 overseas bars.

At Fort Rucker, the applicant received a General Court-Martial adjudged on 
3 November 1970, for events that took place 4-15 August 1970.  He was found guilty of going from his appointed place of duty, disrespect toward a superior officer, 2 counts of failing to obey lawful orders issued by a superior officer, failing to obey a superior noncommissioned officer, two counts of assault on a superior noncommissioned officer, communicating a threat to injure 5 superior noncommissioned officers, and assault on a military policeman by placing a boot lace around his neck and attempting to choke him.  The applicant was sentenced to reduction to E-1, forfeiture of $50.00 per month for 12 months, confinement at hard labor for 12 months, and discharge with a dishonorable discharge.  The applicant was placed in confinement at Fort Leavenworth, Kansas, on 
10 November 1970.  He was dishonorably discharged on 17 June 1971 at the end of his term of service and retained in confinement at Fort Leavenworth to complete his 12 month confinement sentence.

It is also noted in the record that after confinement on or about 10 August 1970 following the incidents for which the applicant received the above court-martial, he was transferred to the post stockade at Fort Benning, Georgia.  While there, on 24-25 September 1970, he was one of 9 inmates that rioted in the post stockade.  There is no record of court-martial action in this case.  The applicant was transferred to the post stockade in Fort Gordon, Georgia.

On 22 November 1971, the applicant received another General Court-Martial for events that took place on or about 19 July 1971 in the Disciplinary Barracks at Fort Leavenworth.  He was found guilty of conspiring to commit assault with intent to inflict grievous bodily harm and of committing murder against one of the other inmates.  He was sentenced to life in prison and transferred to a Federal prison.  The applicant was paroled from Federal prison on 8 September 1996.

The statutory authority under which the Army Board for Correction of Military Records (ABCMR) is 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.  Nor may the Board retry a court-martial case to change any findings of the court-martial of guilt or innocence.  The General Courts-Martial were reviewed by the Military Court of Appeals and the Military Court of Review.  No error or injustice was found in the court-martial proceedings or sentences.

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.  That the applicant was properly given a dishonorable discharge by his first General Court-Martial and the murder verdict given by he second General Court-Martial would have also called for a dishonorable discharge.

2.  All matters relating to the conduct of the courts-martial were reviewed by higher courts and confirmed.

3.  This Board has no authority to disturb the finality of the courts-martial to include matters concerning proceedings or sentence and it finds no evidence to support consideration of clemency.

4. The record does not contain any evidence nor has the applicant submitted any evidence to prove his contention of error or injustice.  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

INDEX

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