MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  27 January 2000
	DOCKET NUMBER:  AR1999025508

	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.

	Ms. Rosa M. Chandler		Analyst	

  	The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Stanley Kelley 		Member	
	Ms. Elzey J. Arledge		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, reconsideration of his request for an upgrade of his bad conduct discharge (BCD) which was denied by the Board on 18 June 1975.  Since records reflecting the Board’s consideration at that time are no longer available, it is impossible to determine if the evidence and arguments now presented are new and different.  Therefore, the case is reviewed de novo.

APPLICANT STATES:  In effect, that his service record was excellent until he returned from the Republic of Vietnam (RVN).

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

A DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) issued to the applicant on 16 December 1969, shows that he had prior honorable active service in the Regular Army (RA) from 5 February-
16 December 1969.  He served in military occupational Specialty (MOS) 
11C (Infantry Indirect Fire Crewman).  He achieved pay grade E-5, with a date of rank of 5 October 1969.  He was issued a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) covering this first period of service.  He had completed 10 months and 12 days of active military service.

On 17 December 1969, the applicant reenlisted in the RA for a period of 
3 years, pay grade E-5 and his previous MOS.

On 28 January 1970, the applicant was assigned to the RVN.  Prior to this 
assignment both his conduct and efficiency ratings had been excellent and they remained excellent throughout his service in the RVN.  

On 14 June 1970, the applicant was wounded in operations against hostile forces in the RVN.  On 2 July 1970, he was assigned to the 249th General Hospital, Japan.  On 15 July 1970, he was assigned to the Great Lakes Naval Hospital, Medical Holding Detachment, Great Lakes, Illinois.  His treatment records are not available.

On 9 October 1970, the applicant was returned to duty status and assigned to 
Fort Hood, Texas.  While assigned to Fort Hood, both his conduct and efficiency ratings were shown as good and remained good through 16 December 1970.  On 27 February 1971, both his performance and his conduct rating were shown as unsatisfactory.  

On 23 March 1971, he was convicted by a special court-martial of being absent without leave (AWOL) from his unit 1-25 February 1971 and from 4-15 March 1971.  He was sentenced to reduction to pay grade E-4, forfeiture of pay and restriction to the company area.

The applicant accepted nonjudicial punishments (NJP’s) under the provisions of 
Article 15, Uniform Code of Military Justice, on 23 June 1971, 2 August 1971, and again on 7 September 1971.  All three offenses were for failure to obey a Fort Hood, regulation not to speed.  He was cited for driving 10 miles over the speed limit during each offense.  His first two punishments included forfeiture of pay.  The 7 September 1971, offense included reduction from pay grade E-4 to pay grade E-3 (suspended) and 14 days extra duty.  

On 15 October 1971, the 7 September 1971, suspension was vacated for reasons unknown, and the applicant was reduced from pay grade E-4 to pay grade E-3.

On 16 November 1971, the applicant was convicted by a special court-
martial of using provoking words towards a noncommissioned officer (NCO) on 
25 September 1971; of using provoking words towards an NCO, of communicating a threat to kill an NCO and assaulting an NCO by shoving him on 27 September 1971.  He was also convicted of stealing the property of another person (a Sony Tape Player) of a value of $65.00 on 26 October 1971.  He was sentenced to receive a BCD, and confinement at hard labor for 4 months.  

On 3 December 1971, the sentence was approved, pending completion of the appellate review.

On 28 December 1971, the U.S Army Court of Military Review affirmed the findings of guilty and approved the sentence.

On 3 February 1972, the applicant was discharged with a BCD, under the provisions of chapter 3, Army Regulation 635-200, by reason of other than desertion (court-martial).  He had completed 2 years, 1 month and 
17 days of active military service on the enlistment under review.  He also had a total of 116 days lost time due to being AWOL and in confinement. 

The applicant’s DD Form 214 issued on 3 February 1972 includes his prior 
period of service from 5 February-16 December 1969, even though he was issued a DD Form 214 at the time of his discharge on 16 December 1969.  The form indicates it was prepared based on temporary records.  His DD Form 
214 issued on 3 February 1972, Item 16c (Date of Entry) states 5 February 1969, it should show 17 December 1969; Item 22a(1) (Net Service This Period) 
states 2 years, 8 months and 19 days, it should show 2 years, 1 month and 
17 days; and Item 22a(2) (Other Service) states 00 months and 00 days, it should show 10 months and 12 days.

The available records show that the applicant is entitled to the following awards for his periods of active duty.  The Army Commendation Medal with “V” Device, the Purple Heart, the National Defense Service Medal, the Vietnam Service Medal with 3 bronze service stars, the Republic of Vietnam Campaign Ribbon, and the Combat Infantry Badge.

On 20 June 1974, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade of his discharge as a result of a record review. On 14 September 1984, he personally appeared before the ADRB and his request for an upgrade of his discharge was also denied. 

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 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 offenses charged.  The conviction and discharge were effected in accordance with applicable law and regulations, then in effect and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

3.	Neither his prior service to include his combat service nor his excellent 
conduct and performance ratings prior to the offenses he committed sufficiently mitigate his misconduct to warrant an upgrade of his discharge. 

4.	However, the applicant is entitled to have Item 16c (Date of Entry) on his 
DD Form 214 issued on 3 February 1972 administratively corrected to show 
17 December 1969 vice 5 February 1969; Item 22a(1) (Net Service This Period) 
corrected to show 2 years, 1 month and 17 days vice 2 years, 8 months and 
19 days; and Item 22a(2) (Other Service) corrected to show 10 months and 
12 days vice 00 months and 00 days.
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.

NOTE:  Request the Army Review Boards Agency (ARBA), Support Division, 
St. Louis furnish the individual concerned a DD Form 215, correcting his DD Form 214 issued on 3 February 1972 to show:  that the individual’s effective date of entry is 17 December 1969; that his net service this period equals 2 years, 
1 month and 17 days; and that his other service equals 10 months and 12 days. 

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

INW____  SK______  EJA_____  DENY APPLICATION

		
Karl F. Schneider
Director, Army Review Boards Agency

Loren INDEX

CASE ID	AR1999025508	
SUFFIX		
RECON		
DATE BOARDED		
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	19720203	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	A68.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.6800	
2.		
3.		
4.		
5.		
6.