MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:           15 June  2000
	DOCKET NUMBER:   AR1999028605

	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. Carl W. S. Chun		Director	
	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Orville W. Troesch Jr.		Chairperson	
	Mr. Kathleen A. Newman		Member	
	Mr. Margaret V. Thompson		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 14 April 1976.  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 he believes it is unjust for his characterization of service to remain as it is due to the fact that it is causing him an undue hardship.  He is currently enrolled in a program for the homeless which is assisting him with his educational needs, as well as with his mental health problems. He believes that he was suffering from mental illness when he was on active duty.  The San Bernardino County Behavioral Health Department will be able to provide the Board with records to support his mental health contentions. 

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

That on 21 September 1966, he was inducted into the Army of the United States with a moral waiver for induction due to having been a juvenile offender.  He was trained in military occupational specialty (MOS) 94C (Meat Cutter).  

The applicant was absent without leave (AWOL) from his unit at Fort Devens, Massachusetts, from 14 May 1967 through 11 July 1968.  On 12 July 1968, he was admitted to the March Air Force Base Psychiatric Ward, Fort Devens with symptoms of withdrawal.  He contended that he had used heroin for the past 
2 years and 6 months.  He was found to have a “dyssocial personality, chronic, moderate-to-severe, as manifested by frequent difficulties with authorities, disregard for social standards and utilization of drugs (heroin).  Predisposition:  Severe impairment, moderately severe, for military and civilian life.”

On 20 November 1968, he was convicted by a general court-martial of being AWOL from 14 May 1967-11 July 1968, from 31 July-19 August 1968 and from 20 August-25 September 1968.  He was sentenced to reduction from pay grade E-3 to pay grade E-1, confinement at hard labor for 1 year, forfeiture of all pay and allowances and to receive a BCD.

On 29 January 1969, the sentence was approved.  The applicant was to be confined at the US Army Disciplinary Barracks, Fort Leavenworth, Kansas, or, elsewhere as competent authority directed.

On 4 March 1969, the United States Court of Military Review affirmed the finding, and approved the sentence of the general court-martial.

On 18 April 1969, the US Army Parole Review Board voted to deny clemency.  Even though he had been diagnosed to suffer from a dyssocial personality, the board determined that there were no psychiatric indications for clemency.  He did not desire restoration to duty. 

On 28 April 1969, the applicant was separated under the provisions of chapter 11, Army Regulation 635-200, for court-martial (other than desertion) with a BCD.  He had served 8 months and 18 days of active military service.  He also had 477 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 offenses 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.

3.  This Board is not an investigative agency and is unable to obtain information about the applicant from local agencies.

4.  Further, the Parole Review Board determined that no psychiatric basis for clemency existed.  The applicant has provided no evidence to the contrary.

5.  Therefore, the type of discharge directed and the reason for discharge was appropriate considering the facts of the case.  The Board notes the applicant’s personal problems.  However, they do not provide a basis for the Board to grant clemency in this case.

6.  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

__owt___  __kan___  __mvt____  DENY APPLICATION

						
		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR1999028605	
SUFFIX		
RECON	20000615	
DATE BOARDED		
TYPE OF DISCHARGE	(BCD)	
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	AR635-200, CH 11 	
REASON	A68.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.6800	
2.		
3.		
4.		
5.		
6.