MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           24 May 2000                   
	DOCKET NUMBER:   AR1999029792

	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. Robert J. McGowan		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone 		Chairperson	
	Mr. Mark D. Manning 		Member	
	Ms. Meta Waller  		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 conviction by a special court-martial and the resultant sentence be set aside; that he be promoted to the rank of corporal and paid retroactively for that promotion; and that he be paid hazardous duty pay.

APPLICANT STATES:  That he won money from NCOs (noncommissioned officers) in a poker game; that he was falsely accused of sleeping on guard duty and court-martialed; that he was on the promotion list to E-4 and would have been promoted except for the court-martial conviction and subsequent reduction. In support, he provides a 27 June 1999 letter.

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

He was inducted into the Army of the United States for 2 years on 25 July 1966.  Upon completion of Basic Combat Training and Artillery Advanced Individual Training at Fort Bliss, Texas, he was assigned to a field artillery unit at Fort Bliss. While at Fort Bliss, he received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for an undisclosed offense.

In April 1967, the applicant was reassigned to the Overseas Replacement Station, Oakland, California, for transfer to Vietnam.  While at Oakland Army Base, he attempted to obtain a hardship discharge, but was denied.  He was sent to Vietnam, arriving there on 17 June 1967.  His rank was private first class (E-3).

The applicant was assigned to a field artillery unit in the 197th Light Infantry Brigade on 24 June 1967.  On 5 October 1967, he was tried by a special court-martial of one specification of sleeping while a sentinel on guard duty on 4 September 1967.  Although he pleaded not guilty to the charge, he was convicted and sentenced to reduction to private (E-1) and forfeiture of $64 per month for 6 months.  He was subsequently promoted to E-2 and E-3, the latter promotion occurring on 19 May 1968.

The applicant departed Vietnam on 16 June 1968 for reassignment to Fort Lewis, Washington.  He was separated with an Honorable Discharge on 17 June 1968.

The Military Justice Act of 1983 (Public Law 98-209), provides, in pertinent part, that military correction boards may not disturb the finality of a conviction by court-martial.

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 the aforementioned requirement.

2.  Trial by court-martial was warranted by the nature of the offense charged.  Conviction was effected in accordance with applicable law and regulations, and the punishment appropriately characterized the misconduct for which the applicant was convicted.  There is nothing in the record, nor has the applicant provided any evidence that NCOs, unhappy over having lost money to him in a card game, fabricated his court-martial charges.

3.  There is nothing in the applicant’s records to indicate that he was on a promotion list for promotion to the rank of corporal (E-4) or that he is due any back pay for hazardous duty.

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

__jns____  __mdm__  __mw___  DENY APPLICATION

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

INDEX

CASE ID	AR1999029792	
SUFFIX		
RECON		
DATE BOARDED	20000524	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	105.0100	
2.		
3.		
4.		
5.		
6.