MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           1 December 1999                   
	DOCKET NUMBER:   AR1999028364

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Elzey J. Arledge, Jr.		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:  That his bad conduct discharge be upgraded to a general discharge under honorable conditions.

APPLICANT STATES:  That he had served a full tour in Vietnam.  He had less than 6 months to go when he returned to the States.  He had personal problems with his family and fled to help them.  He provides his DD Form 214 and his DD Form 215 showing he was issued a Clemency Discharge as supporting evidence.

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

He was inducted into the Army on 12 April 1966.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 13A (Field Artillery Basic).

The applicant was assigned to Vietnam on 20 September 1966 where he performed duties as a cannoneer.

On 6 October 1966, the applicant accepted non-judicial punishment under Article 15, Uniform Code of Military Justice for being disorderly in the troop billets.

On 1 December 1966, the applicant was convicted by a special court-martial of disobeying a lawful order to report to the battery fire direction center, treating a non-commissioned officer with contempt and being drunk and disorderly in camp.
He was sentenced to confinement at hard labor for 6 months (suspended) and to forfeit $50 pay for 6 months.

On 12 September 1967, the applicant departed Vietnam.  He had been awarded the Vietnam Service Medal and the Republic of Vietnam Campaign Medal.

On 19 December 1967, the applicant was convicted by a special court-martial of being absent without leave (AWOL) from 28 October to 3 December 1967.  He was sentenced to confinement at hard labor for 6 months and to forfeit $64 pay for 6 months.

On 30 March 1968, the applicant was convicted by a summary court-martial of being AWOL from 16 February to 22 March 1968.  He was sentenced to forfeit $70 pay for 1 month.

On 6 August 1973, the applicant was convicted by a general court-martial of being AWOL for the periods 27 April to 5 November 1969, 7 January to              14 November 1970, 1 February to 15 September 1971 and 20 September 1971 to 11 May 1973.  He was sentenced to a bad conduct discharge and to be confined at hard labor for 8 months.

During the applicant’s trial, apparently counsel made an unsworn statement in behalf of the applicant stating that the need to satisfy his drug habit pushed him to depart AWOL. 

Information on USDB Form 102, Factual Data for Restoration, Clemency and Parole Review shows the applicant stated he was addicted to drugs and wanted out of the service.  He became tired of waiting for his discharge so he went AWOL.

On 14 February 1974, the applicant was discharged with a bad conduct discharge pursuant to his court-martial sentence.

On 27 February 1976, the applicant was awarded a clemency discharge pursuant to Presidential Proclamation 4313.

Presidential Proclamation 4313 (PP 4313), dated 16 September 1974, was issued by President Ford and affected three groups of individuals.  One group was members of the Armed Forces who were in an unauthorized absence status. These individuals were afforded an opportunity to return to military control and elect either an Undesirable Discharge under PP 4313 or to stand trial for their offenses and take whatever punishment resulted.  For those who elected discharge, a Joint Alternate Service Board composed of military personnel would establish a period of alternate service of not more than 24 months that the individuals would perform.  If they completed the alternate service satisfactorily, they would be entitled to receive a Clemency Discharge.  The Clemency Discharge did not affect the underlying discharge and did not entitle the individual to any benefits administered by the VA.  The award of a Clemency Discharge could be considered by this Board, but the discharge per se did not require relief be granted.

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 and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.  Although it appears the applicant did not meet the criteria for award of a clemency discharge, he was given such a discharge in 1976.  The Board concludes such a discharge does not warrant the relief requested.

3.  The Board notes that at the time of the applicant’s conviction and incarceration he stated he went AWOL to satisfy his drug habit, not because he had family problems.  There is no evidence of record to show he ever attempted to refer himself to a drug abuse program when he returned from Vietnam. 

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

__mkp___  __aao___  _eja____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999028364	
SUFFIX		
RECON		
DATE BOARDED	19991201	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	105.01	
2.		
3.		
4.		
5.		
6.