MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            8 June 2000 
	DOCKET NUMBER:   AR1999031745

	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	
	Ms. Lana E. McGlynn 		Member	
	Mr. Arthur A. Omartian		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 bad conduct discharge (BCD) be upgraded to a fully honorable discharge. 

APPLICANT STATES:  In effect, that in 1968, the Department of Defense put in place provisions that allowed a soldier waiting to be court-martialed to request discharge for the good of the service.  Other soldiers were allowed to take advantage of this provision.  He believes that his rights were violated because he was not granted the same opportunity.  Even though he has been a model citizen since being discharged, he does not enjoy the same privileges as other citizens because of a general court-martial that he received more than 30 years ago.

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

That on 2 March 1966, he enlisted in the Regular Army for a period of 
3 years.  On 6 July 1966, while attending advanced individual training (AIT), he received nonjudicial punishment (NJP) under provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being absent from his unit on 6 July 1966.  His punishment included forfeiture of pay, restriction and extra duty.  He completed AIT and was awarded military occupational specialty (MOS) 
11B (Rifleman).  

On 22 July 1966, he was assigned to Fort Benning, Georgia, to attend the Basic Airborne Course.  He completed the requirements for the course and was awarded the parachutist badge.  On 19 September 1966, he was assigned to the Republic of Vietnam (RVN).  He served in the RVN until 16 September 
1967 without incident.  On 9 November 1967, he was assigned to Fort Bragg, North Carolina.

On 24 November 1967, NJP was imposed against him for being absent from his unit on 20 November 1967.  His punishment included forfeiture of pay, extra duty and restriction.  He was also absent without leave (AWOL) from his unit from 
4-6 December 1967, however, the available records do not show that any disciplinary action was taken against him for this offense.

On 27 May 1968, the applicant was convicted by a special court-martial of being AWOL from 2 February-8 April 1968.  He was sentenced to reduction from pay grade E-4 to pay grade E-1, confinement at hard labor for 6 months (suspended for 6 months) and forfeiture of $90.00 pay per month for 6 months.  

On 5 June 1968, the suspended portion of the sentence to confinement at hard labor adjudged on 27 May 1968 was vacated, because the applicant went AWOL on 3 June 1968.  
On 1 July 1968, he was convicted by a special court-martial of being AWOL from 3-24 June 1968.  He was sentenced to confinement at hard labor for 6 months and forfeiture of $60.00 pay per month for 6 months.  On 16 July 1968, he was transferred to the confinement facility at Fort Riley, Kansas for retraining.  He completed his period of confinement and retraining and was restored to duty at Fort Bragg on 10 September 1968.

On 26 May 1969, a general court martial convicted the applicant of being AWOL from his unit from 27 October–3 November 1968 and from 16 November- 
19 April 1968.  He was sentenced to reduction from pay grade E-3 to pay grade E-1, confinement at hard labor for 18 months, forfeiture of $69.00 pay per month for 18 months and to receive a dishonorable discharge.

On 21 April 1969, the applicant was confined at the US Army Disciplinary Barracks Fort Leavenworth, Kansas.  On 12 July 1969, the sentence was approved. 

On 23 September 1969, the United States Court of Military Review approved the findings of guilty and found the sentence to be proper in law and fact.  However, it determined that his entire record of service was not dishonorable and modified the sentence to confinement at hard labor for 1 year, forfeiture of $69.00 pay per month for 1 year, reduction from pay grade E-3 to pay grade E-1 and that he would be discharged with a BCD.

There is no evidence in the available record that the applicant ever petitioned the US Court of Military Appeals for a review of his case.

On 12 December 1969, he was denied clemency.  He was not considered for restoration to duty.

On 15 December 1969, the applicant was released from confinement and he was discharged under the provisions of chapter 11, Army Regulation 635-200, for other than desertion (court-martial) with a BCD.  He had served 2 years, 
3 months and 10 days of active military service.  He also had 289 days lost time due to being AWOL and in confinement subsequent to his normal expiration term of service. 

His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) states in Item 24 that he received no awards and decorations.  However, General Orders Number 1895, Headquarters, 1st Brigade, 
101st Airborne Division, dated 15 September 1967, shows that he received the Purple Heart (PH) for wounds that he received to his left hand in connection with military operations against a hostile force on 16 August 1967.
General Orders Number 1703, Headquarters, 1st Brigade, 101st Airborne Division, dated 23 August 1967, show that he was awarded the Army Commendation Medal (ARCOM) for meritorious operations against a hostile force between 20 September 1966-18 August 1967.  

Further, his records show that he was awarded the Vietnam Service Medal (VSM), the National Defense Service Medal (NDSM), the RVN Campaign Medal and the Combat Infantry Badge (CIB).  

Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Credit Register) shows that Department of the Army General Order 17, dated 1968, awarded the Meritorious Unit Commendation (MUC) to the applicant’s unit.

Department of the Army Pamphlet 672-3, also shows that Department of the Army General Order 21, dated 1969, awarded the RVN Gallantry Cross with Palm to the applicant’s unit.  As a result, he is entitled to both the MUC and the RVN Gallantry Cross with Palm for his period of service in the RVN.

Additionally, he is entitled to two bronze service stars (BSS’s) for wear on his VSM for his participation in two campaigns in the RVN, the Vietnam Counter Offensive Phase I and Phase II.

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.

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 took into consideration the applicant’s contention that he was not allowed to request a discharge for the good of the service.  However, his command saw fit to refer his case to trial by court-martial.  This is a command prerogative and the Board is not inclined to interfere with the judgement of the commander on the ground at the time.  

2.  In fact, if he had been improperly denied the right to request a discharge for the good of the service or if there were other procedural errors in the court-martial process, these matters should have been resolved during the appellate review process.

3.  Trial by court-martial was warranted by the gravity of the offenses charged. The discharge appropriately characterizes the misconduct for which the applicant was convicted.

4.  Not withstanding his service in the RVN and his awards and decorations, the applicant’s repeated periods of AWOL and his substandard record of service after his return from duty in the RVN provides no basis for the Board to grant clemency in his case.  The BCD issued to him on 15 December 1969 was administratively correct and in conformance with the applicable regulations then in effect with no indication of procedural errors which would have jeopardized his rights.

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.

NOTE:  Request that the Army Review Boards Agency (ARBA), Support Division, St. Louis furnish the individual concerned a DD Form 215, (Correction to DD Form 214) to correct item 24 of his DD Form 214 to show that he is entitled to award of the PH, the ARCOM, the VSM, the NDSM, the RVN Campaign Medal, the CIB, the MUC, the RVN Gallantry Cross with Palm and two BSS’s for wear on the VSM.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__slp____  __lem___  __aao___  DENY APPLICATION

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

INDEX

CASE ID	AR1999031745	
SUFFIX		
RECON		
DATE BOARDED	20000608	
TYPE OF DISCHARGE	(BCD)	
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	AR635-200, CH 11 	
REASON	A68.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.6800	
2.		
3.		
4.		
5.		
6.		

						

INDEX

CASE ID	AR1999031745	
SUFFIX		
RECON	YYYMMDD	
DATE BOARDED		
TYPE OF DISCHARGE	(BCD)	
DATE OF DISCHARGE	19691215	
DISCHARGE AUTHORITY	AR635-200, CH 11 	
REASON	Other than Desertion (Court-Martial)	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	A68.00	
2.		
3.		
4.		
5.		
6.