MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           11 May 2000                   
	DOCKET NUMBER:   AR1999033390

	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.

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. James M. Alward		Member	
	Mr. Christopher J. Prosser		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 be upgraded to honorable.

APPLICANT STATES:  That he was not aware of the ramifications of his plea agreement.  He began to abuse drugs while in Vietnam.  He began to suffer mentally but he was not diagnosed as paranoid schizophrenic until 1983.  His dependence and mental difficulties continued after his transfer to Fort Carson, CO.  He made some very regrettable mistakes.  He knows his actions were wrong and he is deeply sorry.  He is no longer dependent on drugs.  His treatment for schizophrenia has enabled him to be a productive member of his community.  An upgraded discharge would be an important step for him to get a greater feeling of completeness.  He provides no supporting evidence.

COUNSEL CONTENDS:  Counsel makes no contention.

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

He enlisted in the Regular Army on 30 July 1968.  He completed basic combat training and advanced individual training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  

On 28 April 1969, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for willfully disobeying the order of a non-commissioned officer.

The applicant arrived in Vietnam on 7 June 1969.  On 18 June 1969, he was assigned to Company C, 1st Battalion, 52d Infantry as a rifleman.  On 25 July 1969, he was honorably discharged for the purpose of immediately reenlisting on 26 July 1969.  On 31 July 1969, he was assigned to 1st Aviation Brigade as a 67A, door gunner.  On 5 August 1969, he was awarded MOS 67A (Machine Gunner/Helicopter Door Gunner) and transferred to the 281st Aviation Company where he performed duties as a door gunner.  

On 28 March 1970, the applicant accepted NJP under Article 15, UCMJ for being drunk, disorderly and out of uniform in public; disobeying regulations by being  off-limits and purchasing cigarettes and soap for a Vietnamese woman.

The applicant’s conduct and efficiency ratings from Company C, 1st Battalion, 52d Infantry were “excellent;” from the 1st Aviation Brigade and the 281st Aviation Company, “unsatisfactory.”

The applicant departed Vietnam on 2 June 1970 and was assigned to Fort Carson, CO.  

On 12 January 1971, the applicant accepted NJP under Article 15, UCMJ for being absent without leave (AWOL), failure to repair and willfully disobeying the order of a non-commissioned officer.  On 28 April 1971, he accepted NJP under Article 15, UCMJ for failure to repair.

On 24 September 1971, the applicant was convicted by a general court-martial of two specifications of wrongfully selling heroin and being AWOL from 7 June to   23 July 1971.  He was sentenced to a dishonorable discharge and confinement at hard labor for 3 years but his approved sentence was a bad conduct discharge, confinement at hard labor for 2 years, a forfeiture of $150 pay per month for 2 years and reduction to pay grade E-1.

On 29 February 1972, the Court of Military Review affirmed the approved findings and sentence.  On 16 May 1972, the Court of Military Appeals denied his petition for a grant of review.

On 3 July 1972, the applicant was discharged, pursuant to his court-martial sentence, with a bad conduct discharge.  He had completed 2 years, 10 months and 8 days of creditable active service and had 391 days of lost time.  

On 27 September 1984, the applicant applied to the Board to change his discharge to a medical discharge.  He had stated that at the time of his discharge he had a physical profile due to a shoulder separation, a skin problem and a nervous-type problem.  No mention of his 1983 diagnosis of paranoid schizophrenia was made.  On 30 July 1985, the Board denied his request.

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, which could have been a dishonorable discharge, appropriately characterizes the misconduct for which the applicant was convicted.

3.  The applicant provides no evidence to show he has been diagnosed with paranoid schizophrenia nor that it was this condition that led to the incidents for which he was court-martialed and discharged.

4.  The Board is cognizant of the applicant’s post-discharge good conduct, but this factor does not warrant the relief requested.

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

__rvo___  __jma___  __cjp___  DENY APPLICATION

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

INDEX

CASE ID	AR1999033390	
SUFFIX		
RECON		
DATE BOARDED	20000511	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	105.01	
2.		
3.		
4.		
5.		
6.