MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            17 May 2000
	DOCKET NUMBER:   AR2000036195

	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. Calvin M. Fowler		Chairperson	
	Mr. Fred Eichorn		Member	
	Mr. Raymond J. Wagner		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, the removal of a court-martial conviction from his records.

APPLICANT STATES:  That before he was to perform guard duty he was put on medication (DARVON) for pain and the medication made him sleepy.  He further states that he informed his first sergeant about it but was put on guard duty anyways.  He also states that he went into the hospital the next day for surgery and was court-martialed after his stay in the hospital.  He continues by stating that the commander who court-martialed him promoted him to the pay grade of E-5, 13 months later.  In support of his application he submits a Clinical Record Cover Sheet (DA Form 8-275-3) dated 24 March 1967.

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

He enlisted on 10 November 1965 for a period of 3 years and remained on active duty through a series of continuous reenlistments.

He was transferred to Vietnam on 1 November 1966 for duty as a wrecker operator. 

On 31 March 1967 he was convicted by a summary court-martial of sleeping on his guard post on 20 March 1967.  He was sentenced to hard labor without confinement for 30 days and a forfeiture of pay.

He was promoted to the pay grade of E-5 on 13 May 1967 and departed Vietnam on 13 June 1968.  He was promoted to the pay grade of E-7 on 30 September 1979.

He remained on active duty until he was honorably released from active duty on 30 November 1985 due to retirement for length of service and was placed on the retired list effective 1 December 1985.  He had served 20 years and 1 month of total active service.

The DA Form 8-275-3 dated 24 March 1967 provided by the applicant with his application shows that he was admitted to the 18th Surgical Hospital on 20 March 1967 for treatment of a pilonidal absess (normally described as an infected cyst with a hair in the middle).  He remained in the hospital until he was discharged on 24 March 1967.

The applicant’s medical records were not available for review by the Board nor was there any indication in his records of the circumstances surrounding his court-martial conviction.

Army Regulation 600-8-104 serves as the authority for filing of documents in the OMPF.  It states, in pertinent part, that when there is an approved finding of guilty on at least one specification, the court-martial order will be filed on the performance fiche of the OMPF.  If all charges and specifications are dismissed or if all charges and approved findings are not guilty, the court-martial will be filed on the restricted fiche of the OMPF.

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 the absence of evidence to the contrary, it must be presumed that the applicant was afforded the benefit of counsel, the opportunity to assert his innocence and to present evidence or testimony explaining extenuating circumstances at his trial by court-martial.

2.  Therefore, given the passage of time that has occurred (over 33 years) and the absence of evidence to the contrary, the Board must presume that he was properly convicted by a summary court-martial in accordance with the applicable laws and regulations and that none of his rights were violated.

3.  The applicant’s contention that he was under medication has been noted by the Board but is not supported by the evidence submitted with his application or the evidence of record.  The Board also notes that if such was the case he could have asserted his defense, with the aid of counsel at his trial by court-martial.  According, there appears to be no basis to remove the court-martial conviction from his records.

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

__cmf___  __fe ____  __rjw ___  DENY APPLICATION

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

INDEX

CASE ID	AR2000036195	
SUFFIX		
RECON		
DATE BOARDED	2000/05/17	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  328	134.0000/REM CM CONV	
2.		
3.		
4.		
5.		
6.