MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            24 May 2000
	DOCKET NUMBER:   AR2000036025

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Mark D. Manning		Member	
	Ms. Meta Waller		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 dishonorable discharge be upgraded to a more favorable discharge.

APPLICANT STATES:  In effect, that he has been fully rehabilitated for 30 years and his discharge should be upgraded based on  post-service conduct. 

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

The applicant was inducted in Montgomery, Alabama at the age of 24 on 3 July 1963 and served as a cook until he was honorably released from active duty in the pay grade of E-4 on 2 July 1965 due to the expiration of his term of service.

On 13 July 1965 he enlisted in Montgomery, Alabama for a period of 6 years and assignment to Hawaii.  He served as cook in Hawaii until he was transferred to Vietnam with his unit on 6 January 1966.  He was promoted to the pay grade of E-5 on 19 May 1966.

On 17 November 1966 he was convicted by a general court-martial of committing an assault on another NCO by shooting him in the stomach with a dangerous weapon (.38 caliber pistol).  He was sentenced to confinement at hard labor for 1 year, reduction to the pay grade of E-1, forfeiture of all pay and allowances, and a dishonorable discharge.

A review of the record of trial shows that the applicant was attending a company party and was drinking whiskey and beer to the point that he became intoxicated. Shortly after 2100 hours he returned to his tent and got his .38 caliber revolver, placed it under his belt behind his back and returned to the party.  He engaged in a conversation with another NCO for a few minutes and then drew his pistol and shot him in the stomach.  In talking about the incident the applicant stated that the other NCO implied that he (the applicant) wouldn’t shoot him so he had to just show him that he would.  He indicated that he had been like that all of his life and that whenever someone told him that he would not do something, he would do it to show them.  He simply could not stand for someone to call him “chicken”. He also stated that he did not know why he shot the NCO because they were good friends and he had no reason to harm him.  After he shot the NCO he ran and hid in the back of a truck in the motor pool.  The applicant agreed to plead guilty as a result of a pre-trial agreement initiated by the applicant in which he offered to plead guilty to a specification and charge alleging aggravated assault in return for the convening authority’s reduction of a charge and specification of alleged attempted murder down to aggravated assault.

The Army Board of Military Review affirmed the findings and sentence of the general court-martial as approved by the convening authority on 8 March 1967. 

Accordingly, the applicant was dishonorably discharged at Fort Leavenworth, Kansas on 15 May 1967 pursuant to his conviction by a general court-martial.  He had served 1 year, 3 months, and 3 days of active service during his current enlistment for a total of 3 years, 3 months, and 14 days of total active service.  He had 212 days of lost time due to confinement.

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.  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.

2.  The type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case.

3.  Although the Board does have the authority to affect the punishment given by a court-martial conviction, it does not have the authority to disturb the finality of such a conviction.  The Board believes that the type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case.

4.  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.

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

__mdm__  __js ____  ___mw__  DENY APPLICATION

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

INDEX

CASE ID	AR2000036025	
SUFFIX		
RECON		
DATE BOARDED	2000/05/24	
TYPE OF DISCHARGE	DD	
DATE OF DISCHARGE	1967/05/15	
DISCHARGE AUTHORITY	GCM	
DISCHARGE REASON	675	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  675	144.6800/A68.00	
2.		
3.		
4.		
5.		
6.