MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           16 May 2000                  
	DOCKET NUMBER:   AR1999033844

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian 		Chairperson	
	Mr. Van B. Cunningham 		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 dishonorable discharge be upgraded to honorable.  

APPLICANT STATES:  There were a lot of things going on in his life which led to his court-martial that was not brought up during his trial.  He was a young, black soldier in Vietnam, willing to serve his country.  However, upon arrival, he found out that there was a lot of racial tension, and a lot of drugs.  He started using drugs shortly after arriving in country.  He received nonjudicial punishment under Article 15, UCMJ, from a major who did not like black soldiers, causing a lot of racial tension in his unit.  He was medically evacuated to Japan due to a drug related medical problem.  His service was good until he arrived in Vietnam.  He accepted his punishment, but it now has been 30 years and he has paid for his mistake.  He served his country and deserves to have his discharge upgraded in order to have medical benefits, especially now that he has learned that he has hepatitis C, dormant for a long time, which he probably contacted in Vietnam.  He needs an upgraded discharge in order to receive treatment at a VA hospital.    

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

The applicant enlisted in the Army for three years on 23 June 1969, completed training, and in June 1970 was assigned to a supply company in Vietnam.  On     8 September 1970 he received nonjudicial punishment for disobeying a lawful command from a commissioned officer.

Before a general court-martial which convened at Da Nang in Vietnam on         22 January 1971, the applicant was arraigned, tried, and found guilty of assault by detonating a fragmentation hand grenade in the area of two fellow soldiers.  He was sentenced to a dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for three years.  

In an 18 March 1971 review of the record of trial, the XXIV Corps Staff Judge Advocate indicated that the applicant intended to do bodily harm to the soldiers by detonating a fragmentation grenade, that the findings of guilty were established by competent evidence beyond a reasonable doubt, and that the findings and the sentence were legally correct. 

The sentence was approved on 14 April 1971 and the accused was directed to be transferred to the disciplinary barracks at Fort Leavenworth.  A                      15 November 1971 fact sheet for restoration, clemency, and parole, indicates that the applicant was arraigned, tried, and convicted by a special court-martial on 6 August 1970 for wrongful possession of marijuana and breach of restriction; and that he received nonjudicial punishment on 23 September 1970 for failure to go to his place of duty and for willful disobedience of an order from a commissioned officer, in addition to the aforementioned nonjudicial punishment.  

The applicant was released from confinement on parole on 29 March 1972.  The findings of guilty and his sentence was affirmed by the court of military review on 15 June 1972.  

The applicant was discharged on 16 November 1972.  He had 1 year, 4 months, and 6 days of service and 516 days of lost time.  His discharge was dishonorable.

On 21 January 1974 he was released from parole and set at liberty.   

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 applicant's contention that he was young and immature at the time is not sufficiently mitigating to warrant relief.  Nor is the fact that almost 
30 years have passed since his conviction and the resultant dishonorable discharge.  He has submitted neither probative evidence nor a convincing argument in support of his request.   

2.  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.
  
3.  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

___aao__  ___le____  ___vbc__  DENY APPLICATION

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

INDEX

CASE ID	AR1999033844	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000516	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  360	110.00	
2.		
3.		
4.		
5.		
6.