MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            5 April 2000                  
	DOCKET NUMBER:   AR1999033500

	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. Robert J. McGowan		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor Jr. 		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. Lester Echols		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 (BCD) be upgraded to an Honorable Discharge (HD).

APPLICANT STATES:  In effect, that he suffers from hepatitis C (HVC) and is in need of a liver transplant.  He contends that he was infected with HVC while serving in the Army in Vincenza, Italy.  After being injured in a parachute jump, he was admitted to an Italian hospital where hypodermic syringes were routinely reused without sterilization.  He adds that his HVC condition was known to the Army, but ignored.  He also contends that his drug offenses which led to a court-martial and a BCD were the result of his performing secret courier work for an unknown captain in Germany and individuals in Holland.  He states that he is a good citizen and has been for the past 20 years.

In support of his application, the applicant submits:  a copy of a 7 October 1999 letter, subject:  [applicant], Liver transplant; a copy of a 12 October 1999 memorandum to the Board, subject:  Military records of [applicant]; a copy of an 11 October 1999 letter to Congressman Dennis Moore; a copy of a 7 October 1999 letter from Congressman Dennis Moore; a copy of a 6-page statement from the applicant, dated 21 October 1999.

COUNSEL CONTENDS:  That the applicant stated upon enlistment that he had never used illegal drugs; that he had a prior HD on 8 May 1976 and that he was awarded the Good Conduct Medal on 28 August 1979; that he was a model soldier who became disabled while serving his country; and that he has been a model citizen for the past 20 years.  Counsel requests clemency in light of the applicant’s serious medical problems.

EVIDENCE OF RECORD:  The applicant's complete military records are not available.  Available records show:

He served in the US Army National Guard (ARNG) from 26 October 1975 to 9 September 1976.  He served an Active Duty for Training (ADT) tour of 3 months and 4 days and was given an HD on 8 May 1976 after qualifying as a combat engineer, MOS (military occupational specialty) 12B10.

The applicant enlisted in the Regular Army on 10 September 1976 as a combat engineer and was immediately assigned to the 10th Special Forces Group, Fort Devens, Massachusetts.  He completed the basic airborne course and was awarded the Parachutist Badge.

The applicant was reassigned from the Special Forces to the 509th Parachute Infantry Regiment, Vincenza, Italy in February 1978.  He was diagnosed with a recurrent left ankle sprain and disqualified from airborne duty on 26 February 1979.  He was then reassigned to an engineer unit in Germany on or about 1 June 1979 and given duties as a platemaker and draftsman.

Shortly after his assignment to Germany, the applicant was apprehended and charged with wrongful possession of 1,500 grams of hashish, possession of a false document (DA Form 31, Request and Authority for Leave), and violation of a lawful general regulation by transporting contraband across international borders.  In a general court-martial, he pleaded guilty to all charges except possession of a false document.  He was convicted of possession of hashish and violation of a lawful general regulation by transporting hashish across international borders (Holland and Germany).  He was sentenced to reduction to private (E-1), forfeiture of all pay and allowances, confinement at hard labor for 6 months, and a BCD.

The applicant served his sentence to confinement at the United States Disciplinary Barracks, Fort Leavenworth, Kansas.  Upon completion of his sentence, he was transferred to Fort Ord, California to await completion of his appellate review.  On 16 January 1981, he was placed on excess leave.  His appellate review was completed and his conviction upheld.  On 25 March 1981, his BCD was executed.  He had 4 years, 2 months, and 9 days of creditable active service on his current enlistment and 4 years, 5 months, and 13 days of total creditable active service.  He had 126 days of lost time due to confinement.

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.  There is nothing in the applicant’s records, nor has he provided any proof to show that he was ever a patient in an Italian hospital in Vincenza, Italy or that he contracted HVC while there.  HVC is a viral infection which causes inflammation in the liver.  It is a bloodborne infection and may result from exposure to blood or body fluids that contain the hepatitis C virus.  Persons at increased risk of acquiring HVC include injecting drug users, health-care workers with occupational exposure to blood, hemodialysis patients, and blood transfusion recipients.  It may also be transmitted by sexual contact.

3.  The applicant’s trial by general 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 Bad Conduct Discharge which he received appropriately characterizes the misconduct for which he was convicted. It is noted that the applicant pleaded guilty to possession and transporting of hashish between Holland and Germany.

4.  The applicant’s statement in support of his application is viewed with incredulity by the Board.  While foreign hospitals are sometimes used to provide care beyond the capabilities of local US military health clinics, those hospitals are inspected and certified, and required to provide the same level of care as would be provided by a US hospital.  In the case of Vincenza, the Italian hospital is required to perform to the same standard as the Army hospital in Landstuhl, Germany.  Even if the applicant had been a patient in the Italian hospital in Vincenza (and he has not shown that he was) his treatment would not have been as he described.  Likewise, his explanation that he was performing secret courier work for an unknown “Captain Powell” when he was apprehended with hashish, is farfetched and not persuasive to the Board.

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___  __sk____  __le_____  DENY APPLICATION

						Karl F. Schneider
				     Director, Army Review Boards Agency

INDEX

CASE ID	AR1999033500	
SUFFIX		
RECON		
DATE BOARDED	20000405	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	19810325	
DISCHARGE AUTHORITY	AR 635-200 C11	
DISCHARGE REASON	A74.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	105.0000	
2.	110.0000	
3.		
4.		
5.		
6.