MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           13 February 2001                  
	DOCKET NUMBER:   AR2000044180

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar 		Chairperson	
	Mr. Harry B. Oberg 		Member	
	Ms. Shirley L. Powell 		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 discharge date of 30 August 1965 be corrected to show that he was discharged on 23 June 1966.  He also requests that his court-martial conviction be set aside, back pay and allowances from        4 November 1964 to the present time, to include interest compounded at a rate of 20 percent, money due him while in the stockade, and rank (The applicant did not specify what rank).     

APPLICANT STATES:  That he enlisted on 23 October 1963.  He spent 274 days in the stockade, mostly in solitary confinement and was released from Fort Leavenworth on 23 June 1966.  His court-martial was unfair because he was wrongly charged.  The entire case must be dropped.  The applicant states that he was exempt from all duties, and allowed to wear civilian clothes.  He should not have been tried and convicted.  While in solitary confinement he was crying for his mother (he was only 16 years old).  He was charged with an order to shut up and go to sleep.  He is receiving disability for post traumatic stress disorder (PTSD) caused by his solitary confinement.   

EVIDENCE OF RECORD:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 1 September 1982 (AC82-04492) and on      8 April 1998 (AC82-04492D).  The applicant had applied to this Board three times in between those dates, the records of which are not available.  Additional information from records available to the Board indicate: 

General Court-Martial Order Number 8, dated 9 March 1965, shows that the applicant was sentenced to be dishonorably discharged from the service, to forfeit all pay and allowances, and to be confined at hard labor for five years.  The convening authority reduced the sentence of hard labor to two years.

On 21 June 1966 the applicant’s sentence expired and he was released from confinement at Fort Leavenworth.  A statement of release shows that his bad conduct discharge was executed on 30 August 1965.

The 1 September 1982 memorandum of consideration shows that the applicant’s bad conduct discharge was executed on 30 August 1965.   

Sometime in 1992 the applicant wrote the President requesting an honorable discharge, full benefits, and a Congressional Medal of Honor.  He stated that he was an American Hero.  He stated that he was protesting about Vietnam before most people had even heard of Vietnam.  

As a result of the determination made by the 8 April 1998 Board, the applicant’s discharge was upgraded to honorable.  His DD Form 214 shows that no cash settlement for leave was authorized.  It shows his separation date as                    30 August 1965.

On 22 March 1999 a staff member of this Board advised the applicant that the Board did not have the authority to disturb a court-martial conviction, and that he would need to apply to the Office of the Pardon Attorney in Washington, D.C.

He again applied to this Board, and on 27 July 1999 he was informed that since his application pertained to the same issue as was considered by the Board previously, and because he had submitted no new evidence, his current request was not submitted to the Board.

On 30 September 1999 the Defense Finance and Accounting Service notified him that a review of his records failed to reveal any information regarding leave not paid to him at his separation.  That agency also informed him that his confinement was not set aside and rights and privileges not restored; therefore no monies were due him during his 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.  The applicant was released from confinement in 1966; however, he was discharged as a result of his bad conduct discharge on 30 August 1965.  His discharge date is correct. 

2.  The Board has no authority to set aside a court-martial conviction.  The applicant was so informed in March of 1999. 

3.  There is no evidence, nor has the applicant submitted any, to show that he is due any pay and allowances.  The Board notes that his general court-martial sentence included forfeiture of all pay and allowances.  Further, the Defense Finance and Accounting Service notified him that he was due no money during his confinement, and there was no record that he was due any pay for unused leave.     

4.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

5.  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 that requirement.
6.  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

___hbo__  ___slp___  ___jh____  DENY APPLICATION

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

INDEX

CASE ID	AR2000044180	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010213	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  283	105.00	
2.	110.00	
3.	128.00	
4.	129.00	
5.		
6.