MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:            31 October 2000
	DOCKET NUMBER:  AR2000041601

	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. Antoinette Farley		Analyst	

  The following members, a quorum, were present:

	Mr. Elzey J. Arledge Jr.		Chairperson	
	Mr. Allen L. Raub		Member	
	Ms. Brenda F. Hirschi		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 essence, that he be granted amnesty.  In actuality, this is a request for reconsideration of his request for upgrade of his Bad Conduct Discharge (BCD), which was denied by this Board on 13 November 1974.  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:  That his BCD was unjust.  He was under a lot of pressure due to family problems taking place in the United States while he was stationed in the Republic of Vietnam (RVN).  He states that officers withheld information from him about how well his family members were doing and he also believed he was constantly harassed by the same officers before his court-martial.  After returning from the RVN, he had dreams of the situations he experienced and the mental horrors he had gone through.  He states that he is now getting his life together with God’s guidance.

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

That on 27 August 1969, he enlisted in the Regular Army for 3 years.  He completed basic and advanced training in military occupational specialty (MOS) 43J20 (Textile Repairman).

On 13 October 1969, nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, was imposed against the applicant for being drunk and disorderly in uniform in a public place on 12 October 1969.  His punishment included forfeiture of $17.00 pay, 14 days restriction and 
14 days extra duty.  On 30 July 1970, he was assigned to the RVN for duty.

On 13 November 1970, the applicant, while still stationed in the RVN, was placed in pretrial confinement awaiting trial by court-martial.

On 24 November 1970, the applicant was convicted by a special court-martial (SPCM) of six specifications of being disrespectful toward a non-commissioned officer (NCO); of willfully disobeying a lawful order from a NCO; of failing to obey a lawful general regulation; of committing an assault upon a NCO; through carelessness, by discharging a firearm (M-16 rifle) from a five ton tractor, under such circumstances as to endanger human life; and again through carelessness, by discharging a firearm (M-16 rifle), at the company barracks, under such circumstances as to endanger human life.  All incidents occurred on 8 November 1970.  He was sentenced to confinement at hard labor for 3 months and to receive a BCD, (no previous convictions considered).  On 5 February 1971, he was transferred from the RVN and was assigned to Fort Lewis, Washington, for completion of his confinement.

On 27 December 1970, the United States Court of Military Review affirmed the finding of guilty of the six specifications and the sentence. 

On 9 February 1971, he was placed on excess leave without pay, to await completion of his appellate review.

On 15 February 1972, SPCM Order Number 13 was issued by Headquarters, US Army Training Center, Infantry and Fort Lewis, announcing that the sentence having been affirmed pursuant to Article 66 and the provisions of Article 71(c) having been complied with, ordered the BCD to be duly executed.

On 7 March 1972, the applicant was discharged, under the provisions of Army Regulation 635-204, by reason of conviction by court-martial, with a BCD.  He had completed 1 year, 11 months and 16 days of active military service.  He also had 
87 days of lost time due to confinement and 394 days excess leave.  The highest pay grade he attained was E-3.

The applicant’s DD Form 214, Item 13 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) completed at the time of separation, shows the award of the National Defense Service Medal and the Vietnam Service Medal.

The applicant also received two Army Discharge Review Board (ADRB) reviews and one review from the Army Board for Correction of Military Records (ABCMR).  The first review by the ADRB was on 30 October 1973, the second review was by the ABCMR on 13 November 1974 and the third review was by the ADRB (personal appearance) on 10 December 1979.  All three boards denied the applicant’s requests for an upgrade and a change in the reason for his discharge.

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.  The sentence may be modified by the Board based only upon a finding of 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.  While the situation involving his family members is unfortunate, and he perceived he received unfair treatment, his misconduct was serious.  However, the Board is heartened by his recent progress in “getting his life together.”

4.  Nevertheless, the type of discharge directed and the reason for discharge was appropriate considering the facts of the case.  There has been no basis established to grant 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

__eja____  __alr____  __bfh ___  DENY APPLICATION

Carl W. S. ChunDirector, Army Boards for Correctionof military Records

INDEX

CASE ID	AR2000041601	
SUFFIX		
RECON		
DATE BOARDED	20003110	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	19720307	
DISCHARGE AUTHORITY	AR 635-204 	
DISCHARGE REASON	A68.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	A34.02	
2.		
3.		
4.		
5.		
6.