MEMORANDUM OF CONSIDERATION

		IN THE CASE OF:      

		BOARD DATE:           16 September 2003                   
		DOCKET NUMBER:   AR2003088922

	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. Yvonne J. Foskey		Analyst	

  The following members, a quorum, were present:
	Mr. Fred N. Eichorn		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Karen A. Heinz	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 his undesirable discharge (UD) be upgraded to an honorable discharge (HD).

APPLICANT STATES:  In effect, that he was young and immature during the time he served and this coupled with the fact he was out of his country 
(Puerto Rico) and had a language barrier contributed to his misconduct.  He now requests that his discharge be reviewed because he is very sick and in need of medical benefits.  

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

On 16 August 1967, he was inducted into the United States Army for 2 years.  He successfully completed basic training and advanced individual training (AIT) at Fort Jackson, South Carolina.  Upon completion of AIT, he was awarded military occupation specialty (MOS) 11B (Light Weapons Infantryman).  

The applicant’s Enlisted Qualification Record (DA Form 20) shows that he served in the Republic of Vietnam (RVN) from 17 March 1968 through 5 May 1968.  Item 40 (Wounds) contains the entry “gunshot wound right forearm, 14 Apr 68”, which indicates he was wounded in action on 14 April 1968, while serving in the RVN.  As a result, he was medically evacuated to Fort Sam Houston, Texas on 5 May 1968.  The record also shows that he earned the National Defense Service Medal and Vietnam Service Medal during his active duty tenure.  

The applicant’s record reveals a disciplinary history that includes a conviction of being absent without leave (AWOL), from on or about 13 July through on or about 21 September 1968, by a special court-martial on 7 October 1968; and his conviction of being AWOL, from on or about 6 to on or about 13 January 1969, by a summary court-martial (SCM) on 30 January 1969.  

The record also shows that on 17 June 1969, the applicant was convicted pursuant to his pleas by a general court-martial (GCM) of possession of heroin and the wrongful use of a habit forming narcotic drug (heroin).  The resultant sentence included confinement at hard labor for three years, reduction to private/E-1, total forfeiture of all pay and allowances, and a dishonorable discharge (DD).  

On 29 August 1969, the United States Army Court of Military Review upon consideration of the entire record, including consideration of the issues specified by the appellant, held that the findings of guilty and the sentence as approved by the convening authority were correct in law and fact.  Accordingly, the guilty findings and the sentence were affirmed.

Subsequent to the review and decision of the United States Army Court of Military Review, the applicant petitioned for a grant of review by the United States Court of Military Appeals.  On 20 Oct 1969, the United States Court of Military Appeals denied this petition.  

On 27 October 1969, in GCM Order Number 1070, issued by Headquarters, United States Disciplinary Barracks, Fort Leavenworth, Kansas, the sentence having been affirmed pursuant to Article 66, and Article 71(c) of the UCMJ having been complied with, the GCM sentence was ordered to be duly executed.  The applicant was ordered to be confined in the United States Disciplinary Barracks Fort Leavenworth.  

On 24 November 1969, the applicant was discharged in accordance with the discharge portion of his sentence.  On 27 February 1970, the Secretary of the Army directed that a Bad Conduct Discharge (BCD) be substituted for the executed DD in the applicant’s case.  During the remainder of 1970, the Army and Air Force Clemency Board reduced the applicant’s confinement to two and a half years, then two years, and finally remitted the unexecuted portion of the sentence to confinement effective 14 December 1970.

The DD Form 214 issued to the applicant shows that he received a BCD under the provisions of paragraph 11-1b, Army Regulation 635-200.  The separation document also verifies that at the time of his discharge, he had completed 1 year, 5 months, and 29 days of creditable active military service, and he had accrued 287 days of time lost due to AWOL and confinement.  

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11, in effect at the time, established the policy for the separation of members with a dishonorable or bad conduct discharge pursuant to an approved sentence of a general or special court-martial.  It stated that discharge would be accomplished only after the completion of the appellate process, and affirmation of the court-martial findings and sentence.

Title 10 of the United States Code, Section 1552 as amended does not permit any redress by this Board of the finality of a court-martial conviction and empowers the Board to only change a discharge if clemency is determined to be appropriate.

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 Board carefully considered the applicant’s claims that his youth, immaturity, and language barrier contributed to his misconduct, and his current medical problems.  However, it finds none of these factors are sufficiently mitigating to warrant the requested clemency.  

2.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the punishment imposed.  

3.  The evidence of record confirms that the applicant’s conviction and discharge were effected in accordance with applicable law and regulations in effect at the time, and that his trial by court-martial was warranted by the gravity of the offenses with which he was charged.

4.  The Board finds that the type of discharge the applicant received, as amended by the Secretary of the Army, appropriately characterizes the misconduct for which he was convicted and accurately reflects his overall record of service.  Therefore, it finds there is an insufficient basis to grant clemency in this case.

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 this 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

__FE__  ___KH__  ___MM_ __  DENY APPLICATION

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

INDEX

CASE ID	AR	
SUFFIX		
RECON		
DATE BOARDED		
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.