MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:           19 October 2000
	DOCKET NUMBER:    AR2000039887

	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. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Ernest W. Lutz Jr. 		Chairperson	
	Mr. Christopher J. Prosser		Member	
	Ms. Tracey L. Pinson		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 the court-martial, for having in his possession a trace of heroin be removed from his official military file.

APPLICANT STATES:  In effect, that 28 years ago, when he was a scared, lonely, immature soldier assigned to the Republic of Vietnam (RVN), he unknowingly smoked a cigarette that had been laced with heroin.  A fellow soldier had given the cigarette to him.  Since that time he has served his country honorably as a soldier and as a citizen.  He completed his enlistment obligation, was honorably discharged and has worked for the US Postal Service for the past 16 years.  As a result of this offense, he was denied an opportunity to pursue a business venture due to questions on the licensing application.  He submits a copy of his honorable discharge certificate, a current police records check, one current character reference, two character references from 1971 and a copy of the special court-martial order dated February 1972, in support of his request.

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

On 20 August 1970, he enlisted in the Regular Army for a period of 3 years and training in military occupational specialty (MOS) 68G (Airplane Repairman).  On 28 October 1971, he was assigned to the RVN.  

On, 24 January 1972, the applicant was convicted by a special court-martial of 
wrongfully having in his possession a trace of heroin, a habit forming narcotic drug.  He was sentenced to reduction from pay grade E-4 to pay grade E-1, forfeiture of $192.00 pay per month for 3 months, and confinement at hard labor for 2 months. 

On 12 February 1972, only that portion of the sentence that provided for forfeiture of pay and for reduction to pay grade E-1 was approved.

On 31 August 1972, nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice was imposed against the applicant for being absent from his place of duty on 21 August 1972.  His punishment included 
30 days restriction.

On 27 October 1972, he returned to the United States and was assigned to Fort George G. Meade, Maryland.

On 2 May 1973, he requested an early release under the provisions of Chapter 5, Section IX, Army Regulation 635-200 to accept employment.

On 2 May 1973, the applicant’s commander recommended that his request for early release to accept employment be approved.  On 10 May 1973, the appropriate authority approved the request. 

On 30 May 1973, he was honorably discharged under the provisions of Chapter 5, Section IX, Army Regulation 635-200, to accept or return to employment.  He had completed 2 years, 9 months and 11 days of active military service and he had no recorded lost time.

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 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 offense charged. 

3.  The Board congratulates the applicant on his work achievements since departing the Army.  However, under the operation of law, this Board is not empowered to excuse, or otherwise remove a conviction by court-martial from a soldier’s record.

4.  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___  __cjp____  __tlp____  DENY APPLICATION

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

INDEX

CASE ID	AR2000039887	
SUFFIX		
RECON	200001019	
DATE BOARDED		
TYPE OF DISCHARGE	Honorable 	
DATE OF DISCHARGE	19730530	
DISCHARGE AUTHORITY	Chapter 5	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	134.0000	
2.		
3.		
4.		
5.		
6.