MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           12 September 2000   
	DOCKET NUMBER:   AR20000035190

	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	
	Mr. Richard H. Allen		Analyst	

  The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. Fred Eichorn		Member	
	Ms. Carol Jo Suiter		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 upgrade of his bad conduct discharge (BCD) to a general discharge (GD), under honorable conditions, which was denied by this Board on or about 17 September 1976.  Since documents 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 essence, that his BCD should be upgraded because in other similar cases, service members have had their cases upgraded and received a GD for drug possession while in the Republic of Vietnam.  In a letter with his application, he discusses how he became addicted to drugs while in the RVN.  He states that he understands that a directive was issued by Melvin Laird (former Secretary of Defense Laird) that stipulated that a medical discharge under honorable conditions was to be issued to servicemen who were given less than honorable conditions discharges for drug possession.  He submits copies of his enlistment contract, his DA Form 20 (Enlisted Qualification Record), and his DD Form 214 (Report of Transfer or Discharge).

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

He enlisted in the Regular Army on 19 November 1968 for 3 years, at age 
17, with parental consent.  He was trained as an Armor Crewman, military occupational specialty (MOS) 11E.

He served in Germany from 25 April 1969 to 28 July 1970.  He served as a clerk typist (MOS 71B) and as an Armor Crewman during this assignment.  He served in three different units in Germany and received two unsatisfactory ratings for conduct and efficiency.  However, he was advanced to pay grade E-3.  Also while in Germany, he received one nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, on 19 January 1970 for being absent without leave (AWOL) from 31 December 1969 until 3 January 1970 and for missing bed check on 16 January 1970.  His punishment included forfeiture of $26.00 pay and 14 days extra duty and restriction.  He did not appeal the punishment.  

On 26 July 1970, he departed Germany enroute to the RVN.  He was AWOL from the Overseas Replacement Station, Fort Lewis, Washington from 6-10 September 1970.  He received a second NJP for this AWOL and his punishment was to forfeit $40.00 pay per month for 2 months.  

Upon arrival in the RVN, he was assigned to duties as a light truck driver.  He was advanced to specialist four, pay grade E-4, the highest rank he held on 
16 November 1970.  On 4 April 1971, he received a third NJP for being absent from his place of duty, for disobeying a lawful order and for using a vehicle which was not properly dispatched to him.  His punishment included l5 days extra duty and restriction.  He did not appeal the punishment.  

On 15 September 1971, the applicant was tried by a general court-martial and convicted of three violations of Articles 92 and 134 of the UCMJ, by disobeying a general regulation, in that he did on or about 16 May 1971 possess 
20 secobarbital tablets and 3.76 grams of heroin, and on 24 July 1971, he possessed an additional 5.03 grams of heroin.  In conformance with his plea of guilty, and a pretrial agreement to serve not more than 2 years in confinement, he was sentenced to be reduced to pay grade E-1, to serve in confinement at hard labor for 2 years, to forfeit all pay and allowances and to receive a dishonorable discharge (DD).  

On 9 January 1972, all portions of the sentence, less the DD, were approved by the general court-martial convening authority who directed that the confinement portion of the sentence would be served at the United States Disciplinary Barracks (USDB) at Fort Leavenworth, Kansas.  The record of trial was referred for review by the United States Army Court of Military Review (USACMR).  

On 9 May 1972, the Special Assistant to the Secretary of the Army approved on behalf of the Secretary of the Army a recommendation of the Army and Air Force Clemency And Parole Board to remit in excess of 1 year confinement and to discharge the applicant only with a Bad Conduct Discharge (BCD).  This decision was announced on 19 May 1972.  

On 10 May 1972, the USACMR only approved so much of the sentence as pertained to the reduction to pay grade E-1, forfeiture of all pay and allowances, confinement at hard labor for 15 months (vice 24 months) and directed that he receive a BCD.  There is no indication that the USACMR was aware of the Secretary of the Army’s action on the case. 

On 30 June 1972, the applicant was released from confinement and placed on excess leave pending full implementation of his sentence.

On 15 August 1972, General Court-Martial Order 951 was issued by the USADB which noted that so much of the general court-martial sentence of 15 September 1971 as pertained to reduction to pay grade E-1, forfeiture of all pay and allowances, confinement at hard labor for 15 months and a BCD having been affirmed under the provisions of Article 66, UCMJ and the provisions of Article 71, section c, having been complied with, the sentence would be duly executed.  However, the order went on to note that by order of the Secretary of the Army the sentence to confinement at hard labor in excess of 1 year had been remitted, and that the applicant had been restored to duty effective 30 June 1972, and then placed on excess leave to await the outcome of his appellate review and any forfeitures of pay and allowance had also been deferred from that date.  
On 14 September 1972, the applicant was discharged with a BCD,  under the provisions of chapter 11, Army Regulation 635-200, by reason of court-martial.  He was credited with 3 years and 8 days active service and he had 292 days lost time through 29 June 1972.  It was also noted that he was discharged from an excess leave status.  His awards and decorations included the National Defense Service Medal, the Vietnam Service Medal and three sharpshooter/marksmen badges. 

On 15 September 1976, this Board denied the applicant’s request for upgrade of his discharge.  On 8 September 1981, the staff of the Board administratively denied a request for reconsideration of the applicant’s discharge based upon the September 1976 review action.

Under Department of Defense Memoranda of 7 July and 13 August 1971, the latter sometimes known as the Laird Memorandum, administrative discharges under other than honorable conditions, issued solely on the basis of personal use of drugs, or possession of drugs for the purpose of such use, will be reviewed for recharacterization;  that under such policy, each Secretary of a military department is authorized to issue a discharge under honorable conditions upon establishment of facts consistent with this policy.  The policy was applicable only to discharges which were executed on or before 7 July 1971, or issued as a result of a case in process on or before 7 July 1971.  On 28 April 1972, this policy was expanded to include punitive discharges and dismissals resulting from approved sentences of courts-martial issued solely for conviction of personal use or possession of drugs for personal use.  Again, discharge was to have been executed on or before 7 July 1971, or in progress before that date.  

The statutory authority under which this Board was created (Title 10, United States Code, section 1552) precludes any action by this Board which would disturb  the finality of a court-martial conviction.  The sentence may only be modified by the Board in cases involving clemency.

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 this 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.  The Board notes that the applicant was not convicted by a general court-martial until 15 September 1971.  This was more than 2 months after the effective date (7 July 1971) of the Laird Memorandum.  Further, at least one of the offenses involved in the court-martial charges was committed after the 7 July 1971 effective date of the Laird Memorandum.

4.  Additionally, the Board notes that clemency was granted in this case on at least two occasions.  The first was when his sentence was reduced to a BCD and then secondly when his sentence to confinement was reduced to 15 months, and then any portion of the sentence in excess of 12 months was remitted.  Therefore, this Board declines to grant further clemency in this case.  

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

__cmf____  __fe____  __cjs____  DENY APPLICATION

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

INDEX

CASE ID	AR2000035190	
SUFFIX		
RECON	19760915	
DATE BOARDED	20000912	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	19720914	
DISCHARGE AUTHORITY	AR635-200, CH 11	
DISCHARGE REASON	A68.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR 	
ISSUES         1.	105.01	
2.	A85.01	
3.	A91.05	
4.	A92.35	
5.	A93.17	
6.