MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:            1 March 2000
	DOCKET NUMBER:   AR1999028544

	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:

	Mr. George D. Paxson		Chairperson	
	Ms. Melinda M. Darby		Member	
	Mr. John Saputo		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 (BCD) be upgraded to a general discharge under honorable conditions or to a fully honorable discharge. 

APPLICANT STATES:  In effect, that he believes that his misconduct was directly related to his experiences in the Republic of Vietnam (RVN).  He believes that he was suffering from post traumatic stress disorder.  Additionally, he states that the awards and decorations that he received from the two tours that he served in the RVN were not taken into consideration.  Neither was he advised that he could have resigned from the military.   In support of his request, he submits the US Army Court of Military Review proceedings, and a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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

Prior to the enlistment under review, the applicant had an honorable period of service in the Regular Army (RA) from 25 January 1962-28 January 1964.  On 29 January 1964, he reenlisted in the RA for a period of 6 years.  He served in military occupational specialty (MOS) 91B (Medical Specialist).  He served in the RVN from 2 August 1964-1 August 1965 and again from 4 May 1967-3 May 1968.  The highest pay grade he achieved was pay grade E-5.

On 7 December 1967, while assigned in the RVN, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15,of the Uniform Code of Military Justice (UCMJ), for disobeying a lawful order and for being intoxicated to the point that he was unable to perform his military duties on 
4 December 1967.  His punishment included reduction from pay grade E-5 to pay grade E-4.

On 20 January 1968, the applicant accepted NJP for failure to report to duty on 16 January 1968.  His punishment included an oral reprimand, forfeiture of pay, and extra duty.

On 16 February 1968, the applicant accepted a third NJP for failure to report for duty and for being drunk and creating a disturbance.  His punishment included reduction from pay grade E-4 to pay grade E-2 (suspended) an oral reprimand and forfeiture of pay.  On 4 March 1968, the suspended portion of his punishment was vacated.  The reason for this action is not a matter of record.

In May 1968, the applicant was assigned to Fort Sill Oklahoma.  On 
22 August 1969, he was convicted by a general court-martial of being AWOL from his unit from 5 July 1968-8 July 1969. He was sentenced to confinement at hard labor for 8 months, forfeiture of $40.00 pay per month for 8 months and to be discharged with a BCD.

On 13 September 1969, the applicant’s sentence was approved pending completion of the appellate review.  The applicant was to be confined at the US Army Disciplinary Barracks, Fort Leavenworth, Kansas.

Before the United States Court of Military Review, the defense counsel raised the contention that the Staff Judge Advocate prejudicially erred when he failed to include in his post-trial review information about the applicant’s awards and decorations which may have weighted significantly on the convening authority’s determination of an appropriate sentence and the exercise of his clemency powers.  The defense counsel contended that the convening authority was informed that the applicant had “twice served full tours in the RVN.  However, he was not informed of the applicant’s awards and decorations which consisted of the Air Medal with fourteen oak leaf clusters, two Army Commendation Medals for Heroism, the Armed Forces Expeditary Medal, the Vietnam Service Medal and the Vietnamese Cross of Gallantry with Palm.  “The defense counsel did not urge that the error warranted disapproval for the punitive discharge, but rather that setting aside the confinement and forfeitures portions of the applicant’s sentence was most appropriate corrective action”.  

On 2 February 1970, the United States Court of Military Review 
reassessed the sentence, and rather than order a new post-trial review the Court affirmed the findings of guilty, but ordered that only so much of the sentence as provided for the BCD, confinement at hard labor for 4 months and forfeiture of $40.00 pay per month for 4 months, would be approved  

On 17 February 1970, the applicant authenticated a statement with his own signature in which he stated that he was notified concerning the decision of the US Army Court of Military Review.  He also stated that he was notified of his right to petition the US Court of Military Appeals.  There is no evidence that he ever petitioned the US Court of Military Appeals.  

On 20 February 1970, the applicant was separated under the provisions of chapter 11, Army Regulation 635-200 for court-martial with a BCD.  He had served 4 years, 4 months and 11 days of active military service on the enlistment under review, and he had served 2 years and 4 days on a prior enlistment.  He also had 616 days lost time due to being AWOL and in confinement.

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 clemency, a military record 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.  
There is no evidence that he was ever offered the opportunity to request an administrative discharge in lieu of trial by court martial.  However, he had no automatic right to receive such approval, rather it was a matter resting with the general court-martial convening authority.  Therefore, the Board presumes regularity in the process of his charges to trial by court-martial.

3.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterized the misconduct for which the applicant was convicted.

4.  The Board concluded that the discrediting entries in the applicant’s record
were not outweighed by his good conduct or his RVN service to the extent that it warrants clemency.

5.  The Board concluded that both periods of service that the applicant served in the RVN was considered prior to his sentence being rendered.  On 2 February 1970, the United States Court of Military Review reassessed his sentence due to the oversight of the convening authority not considering his awards and decorations during the post-trial sentence review process.  That Court affirmed the findings of guilty and the sentence that provided for the BCD.  However, the Court only affirmed confinement at hard labor for 4 months and forfeiture of $40.00 pay per month for 4 months vice the original sentence of 8 months confinement and 8 months forfeiture of pay.

6.  Additionally, there is no probative medical evidence in the applicant’s record and he has submitted none that shows that he suffered from PTSD while he was in the military.  Even if true, this matter should have been resolved during the appellate review process.

7.  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

__gdp___  __mmd___  __js____  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999028544	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000301	
TYPE OF DISCHARGE	(BCD)	
DATE OF DISCHARGE	19700220	
DISCHARGE AUTHORITY	AR635-200, CH 11 	
REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	105.0100	
2.		
3.		
4.		
5.		
6.