MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:           20 April 2000                   
	DOCKET NUMBER:  AR1999032210

	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.

	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Walter T. Morrison		Chairperson	
	Mr. Roger Able		Member	
	Mr. Margaret V. Thompson		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), under other than honorable conditions, be upgraded to a fully honorable discharge.

APPLICANT STATES:  In effect, that he left his unit in an absent without leave (AWOL) status due to family problems.

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

That on 27 March 1967, he enlisted in the Regular Army for 3 years, with a moral waiver for two juvenile offenses.  He was trained in military occupational specialty (MOS) 11B (Light Weapons Infantryman).  

He served in the Republic of Vietnam (RVN) from 24 August 1967-23 August 1968 without any recorded indisciplines.  On 28 October 1968, he was assigned to Fort Benning, Georgia.  He had attained the rank of sergeant pay grade E-5.

He had been awarded the Air Medal, the Army Commendation Medal, the National Defense Service Medal, the Vietnam Service Medal with bronze service star, the RVN Campaign Medal with 60 Device, and the Combat Infantryman’s Badge.

On 15 January 1969, nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, was imposed against the applicant for being AWOL from 5-10 December 1968, and from 9-10 January 1969.  His punishment included reduction from pay grade E-5 to pay grade E-4, forfeiture of $95.00 pay and 30 days restriction.

On 17 June 1969, the applicant was convicted by a special court-martial of being AWOL from 16 January-26 March 1969.  He was sentenced to reduction from pay grade E-4 to pay grade E-3 and forfeiture of $50.00 pay per month for 
6 months.

On 22 February 1971, he was convicted by a general court-martial of being AWOL from 1-9 July 1969 and from 29 September 1969-25 November 1970.  He was sentenced to reduction from pay grade E-3 to pay grade E-1, confinement at hard labor for 4 months (deferred), and to receive a BCD.

On 12 March 1971, the applicant was placed on excess leave, pending the appellate review.

On 13 July 1971, the United States Court of Military Review approved the sentence and affirmed the findings.  “The unexecuted portion of the sentence to confinement at hard labor was remitted effective the date of his discharge from the military.”

On 11 August 1971, the applicant was discharged from the Army under the provisions of Army Regulation 635-204, for court-martial (other than desertion), with a BCD, under other than honorable conditions.  He had completed 2 years, 5 months, and 13 days of active military service.  He also had 353 days lost time due to being AWOL and in confinement. 

Title 10, U.S. 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.  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 gravity of the offenses 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.

3.  Therefore, the type of discharge directed and the reason for discharge was appropriate considering the facts of the case.  There has been no basis established to grant clemency in this case.

4.  The Board determined that the applicant had many legitimate avenues through which to obtain assistance for his personal problems without committing the misconduct which led to the separation action under review.

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.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__wtm___  __ra____  ___mvt__  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999028020	
SUFFIX		
RECON	20000420	
DATE BOARDED		
TYPE OF DISCHARGE	(DD)	
DATE OF DISCHARGE	19620407	
DISCHARGE AUTHORITY	AR 635-204 	
DISCHARGE REASON	A67.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.6700	
2.		
3.		
4.		
5.		
6.