MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            3 May 2000
	DOCKET NUMBER:   AR2000036328

	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. Deyon D. Battle		Analyst	

The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. John H. Kern		Member	
	Mr. Ernest W. Lutz, Jr.		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:  That his bad conduct discharge be upgraded to an honorable or a general discharge.

APPLICANT STATES:  That the charges against him were unwarranted and that he was a 22-year old frightened young man who was in Vietnam and fearful of death.  He also states that the weapons that were found were to protect himself and the veterans in his squad.

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

On 9 March 1967, he enlisted in the Army for 3 years in the pay grade of E-1.  He successfully completed his training as a light vehicle driver.  On 30 November 1967, he reenlisted in the Army for 6 years and on 30 April 1968 he was transferred to the Republic of Vietnam.

On 25 December 1968, the applicant was convicted by a special court-martial of leaving the scene of an accident, absenting himself from his unit, failure to go to his appointed place of duty and breaking restriction.  His sentence consisted of a reduction in pay grade and a forfeiture of pay.

He was convicted by a general court-martial on 19 July 1969 of disobeying a lawful command, lifting a loaded weapon against two commissioned officers and possessing a privately owned weapon.  His sentence consisted of a bad conduct discharge, confinement at hard labor for 5 years and a forfeiture of pay.  

The convening authority approved the findings and recommendation on 6 October 1969.  On 10 June 1970 the U.S. court of Military Review affirmed the findings and sentence of the general court-martial.  

Accordingly, on 20 April 1971, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 11 as a result of a general court-martial conviction.  He had completed 1 year, 10 months and 28 days of total active service and he had over 600 days of lost time due to confinement.  He was issued a Bad Conduct Discharge.

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.  The actions by the Army in this case were proper, and there is no doubt to be resolved in favor of the applicant.

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 applicant's contention that he was young and immature at the time is not sufficiently mitigating to warrant relief.  Moreover, the evidence of record does not support his contention that the charges against him were unwarranted.  The records clearly show that he lifted a loaded weapon against two commissioned officers, disobeyed a lawful command and violated a lawful general regulation.  He was convicted by a general court-martial for his acts of misconduct and there is no basis for recharacterization of the discharge.

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

__ewl ___  __rvo___  ___jhk___  DENY APPLICATION

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

INDEX

CASE ID	AR2000036328	
SUFFIX		
RECON		
DATE BOARDED	2000/05/03	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	1971/04/20	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	675	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  678	144.6803/A68.03	
2.		
3.		
4.		
5.		
6.