MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           23 October 2001        
	DOCKET NUMBER:   AR2001058211

	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:

	Ms. Shirley L. Powell		Chairperson	
	Mr. Allen L. Raub		Member	
	Mr. Thomas E. O'Shaughnessy, 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 (BCD) be upgraded.

APPLICANT STATES:  That, at age 17, he quit school in the 10th grade in order to join the Army and go to Vietnam.  In Vietnam, he served as an infantryman and was awarded two Purple Heart medals, three Air Medals, one Army Commendation Medal with V Device for valor, the National Defense Service Medal, the Vietnam Service Medal, the Vietnam Campaign Medal, the Combat Infantryman Badge, and the Sharpshooter Marksmanship Badge (M-14 Rifle).  He spent 19 months in Vietnam, extending his tour in order to guarantee reassignment to the United States; however, he was transferred to Germany against his will.  In Germany, he loaned money to a few soldiers, including a noncommissioned officer (NCO).  Everyone but the NCO repaid him; the NCO told him he would not repay his debt.  The applicant then stole the exact amount of the loan from the NCO and was court-martialed and given confinement and a BCD.  He states that his punishment was too harsh; that he is a decorated Vietnam veteran; that he was suffering from flashbacks (post-traumatic stress disorder, or PTSD) in Germany; that he has had two heart attacks and needs Department of Veterans Affairs (VA) benefits and healthcare.

In support of his request, he submits a VA Form 21-4138 (Statement in Support of Claim); a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); copies of certificates to show award of the Purple Heart with 1st Oak Leaf Cluster; certificates, citations and General Orders Number 14926, Headquarters, 1st Infantry Division for award of the Air Medal with 1st Oak Leaf Cluster; a certificate and General Orders Number 10992, Headquarters, 1st Infantry Division for award of the Army Commendation Medal with "V" Device; and a certificate for best wheeled-vehicle driver for the month of May 1970.  He also submits a newspaper clipping from an unknown source that shows he returned to the Republic of Vietnam (RVN) after being hospitalized for shrapnel fragment wounds.

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

He was born on 25 February 1949 and enlisted in the Regular Army for 3 years on 8 December 1967; he was almost 19 years of age at the time of enlistment.  Following completion of all required military training, he was assigned to a unit in Vietnam on 24 May 1968, with duty in military occupational specialty (MOS) 11B, Light Weapons Infantryman.

On 29 August 1969, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for misappropriation of a government vehicle by driving it off base on 24 August 1969 without proper authorization.  His punishment included reduction from pay grade E-4 to pay grade E-3 (suspended for 2 months) and forfeiture of 
$40.00 pay per month for 1 month.  
The applicant was wounded twice during his assignment to the RVN.  On 
8 August 1968, he received a fragment wound to the left cheek.  On 2 January 1969, he received a grazing gunshot wound to the right side of his head.  He received the Army Commendation Medal for heroism on 23 August 1968.  When his fire team came under enemy fire, he disregarded his own personal safety and advanced under heavy enemy fire to kill a sniper in the tree line.

On 23 December 1969, the applicant was reassigned to Germany.

On 18 August 1970, the applicant was convicted by a special court-martial of stealing United States currency of a value of approximately $457.00, the property of an NCO.  He was sentenced to forfeiture of $75.00 pay per month for 6 months, to confinement at hard labor for 4 months, reduction from pay grade E-4 to pay grade E-1, and to be separated with a BCD.  The applicant was in confinement from 19 August-26 November 1970.

On 23 October 1970, the convening authority approved the adjudged sentence.  
That portion of the sentence adjudging a BCD was suspended for the period of confinement and 2 months thereafter, unless the suspension was sooner vacated.  The record of trial was forwarded to the United States Army Court of Military Review for appellate review. 

The applicant has lost time from 29 December 1970-3 March 1971.  The available records do not indicate whether he was absent without leave or in confinement during this period of time.

On 26 January 1971, that portion of the applicant's sentence pertaining to execution of a BCD was vacated.

On 17 May 1971, the applicant received NJP for being absent from his unit from 0730-1630 hours on 14 May 1971.  His punishment included 14 days' extra duty and restriction.

On 26 May 1971, the United States Army Court of Military Review affirmed the findings of guilty and the approved sentence.

On 1 June 1971, the applicant was discharged under the provisions of chapter 3, Army Regulation 635-200 with a BCD.  He had completed 3 years and 10 days of active military service.  He also had 165 days lost time.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, paragraph 3-11, provides that a soldier will be given a dishonorable discharge (DD) or BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.
Court-martial convictions stand as adjudged or modified by appeal through the judiciary process.  In accordance with Title 10, United States Code, Section 
1552, the authority under which this Board acts, the ABCMR is not empowered 
to change a discharge due to matters which should have been raised in the 
appellate process, rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.

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.  The applicant was not a 17 year old when he enlisted and went to Vietnam; he was almost 19 years of age when he entered active duty on 8 December 1967, and over 19 years old when he arrived in Vietnam.

3.  Trial by court-martial was warranted by the gravity of the offense 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.  There is no indication that the applicant had been cheated by the NCO; however, even if true, there were other avenues available to the applicant to recover his loan.

4.  The applicant's Vietnam service was, indeed, laudatory.  He received two Purple Hearts, three Air Medals, the Combat Infantryman Badge, and an Army Commendation Medal with V Device.  However, these achievements do not sufficiently mitigate his misconduct to establish a basis for clemency.  

5.  Eligibility for veteran's benefits (to include VA medical benefits) does not fall within the purview of this Board, but rests with the VA.  This Board does not grant discharge upgrades for the purpose of gaining VA benefits.

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

___SLP _  __ALR___  ___TEO_  DENY APPLICATION

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

INDEX

CASE ID	AR2001058211	
SUFFIX		
RECON		
DATE BOARDED	20011023	
TYPE OF DISCHARGE	(BCD)	
DATE OF DISCHARGE	19710601	
DISCHARGE AUTHORITY	AR 635-200, Chapter 3  	
DISCHARGE REASON	A68.00	
BOARD DECISION		
REVIEW AUTHORITY		
ISSUES         1.	144.6800	
2.		
3.		
4.		
5.		
6.