MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            26 April 2000 
	DOCKET NUMBER:   AR1999029267

	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. Stanley Kelley		Chairperson	
	Ms. Karol A. Kennedy		Member	
	Mr. Curtis L. Greenway		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 bad conduct discharge (BCD) be upgraded to a fully honorable discharge. 

APPLICANT STATES:  In effect, that he faced the US Army, he did not run away.  Even though he had personal problems, he served in the Republic of Vietnam (RVN).  He asked the judge to send him back to duty so that he could complete his service obligation, however, the judge stated that “I am going to make an example of you.”  He would like to have peace of mind and to be able to obtain veterans benefits.

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

That on 11 February 1970, he enlisted in the Regular Army for a period of 
3 years.  He served in military occupational specialty (MOS) 71B (Clerk).  
On an unknown date in August 1970, he was assigned to the Republic of Vietnam (RVN).  

On 7 November 1970, nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, was imposed against the applicant for leaving his guard post without authority on 31 October 1970.  His punishment included forfeiture of $88.00 pay.

On 27 December 1970, NJP was imposed against the applicant for failure to go to his appointed place of duty at the time prescribed on 21 December 1970.  His punishment included forfeiture of $50.00 pay per month for 2 months and 
14 days extra duty.

On 26 April 1971, NJP was imposed against him for leaving his guard post with the intent of abandonment on 23 April 1971.  His punishment included forfeiture of $45.00 pay, and 14 days restriction.

On 23 May 1971, the applicant was convicted by a special court-martial of wrongful appropriation of an M16A1 rifle of a value of $164.00 (3 May 1971) and for two specifications of assault and battery by striking two noncommissioned officers in the face, in the head and on the body with his fist.  He was sentenced to reduction from pay grade E-3 to pay grade E-1, confinement at hard labor for 
3 months (suspended in excess of 35 days) and forfeiture of $85.00 pay per month for 3 months.  He remained in confinement from 23 May-1 July 1971.

On an unknown date in September 1971, he returned to the United States.  The available records are unclear as to his status upon return.  He was AWOL from 12 October 1971-3 January 1972.  The punishment for this offense is not a matter of record.  
However, on 5 April 1973, he was convicted by a special court martial of being AWOL from the US Army Personnel Control Facility (PCF), Fort Dix, New Jersey from 11 January-29 February 1972, and from 6 March 1972-10 February 1973.  He was sentenced to confinement at hard labor for 4 months and to receive a BCD.

On 12 April 1973, the applicant was confined at the US Army Disciplinary Barracks Fort Leavenworth, Kansas.  On 4 June 1973, the sentence was approved.  

On 13 July 1973, he was placed on excess leave pending appellate review.
On 23 August 1973, he was denied clemency.  He did not desire restoration to duty.

On 21 September 1973, the United States Court of Military Review affirmed the findings, and approved the sentence of the special court-martial.

On 15 November 1973, the applicant was separated under the provisions of chapter 11, Army Regulation 635-200, for other than desertion (court-martial) with a BCD.  He had served 1 year, 11 months and 10 days of active military service.  He also had 515 days lost time due to being AWOL and in confinement. One hundred fifty days were lost subsequent to the normal expiration term of service.

On 23 July 1979, the ADRB denied the applicant’s request for an upgrade of his discharge. 

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.  Further, the Board concluded that the nature of the applicant’s offenses that were committed while he was assigned to a combat zone of operations were serious offenses.

4.  Eligibility for veteran's benefits does not fall within the purview of this Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.

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.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__sk____  __kak___  ___clg___  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999029267	
SUFFIX		
RECON	YYYMMDD	
DATE BOARDED	20000426	
TYPE OF DISCHARGE	(BCD)	
DATE OF DISCHARGE	19731115	
DISCHARGE AUTHORITY	AR635-200, CH 11 	
REASON	Other than Desertion (Court-Martial)	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	A68.00	
2.		
3.		
4.		
5.		
6.