MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           19 May 1999    
	DOCKET NUMBER:   AR1999017410

	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. Loren G. Harrell		Director	
	Ms. Antoinette Farley		Analyst	

  The following members, a quorum, were present:

	Mr. John n. Slone		Chairperson	
	Mr. Robert G. Hinkle		Member	
	Mr. Roger W. Able		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) or, at least a general discharge (GD) under honorable conditions.

APPLICANT STATES:  That he arrived back in the United States from being stationed in the Republic of Vietnam (RVN) in a very mentally disturbed state of mind after serving his tour of duty.  He further acknowledges having personal problems, which were further, complicated by being accused of stealing gasoline from a military base and no one listening to his side of the story.  Therefore, if his discharge is upgraded it would allow him to receive health care treatment for his disability, financial help and a change in his homeless status.

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

He initially enlisted in the Regular Army for 2 years on 18 March 1968, with a high school diploma.  Following completion of his basic combat training, he was assigned to a unit at Fort Polk, Louisiana, as a cook from 20 May 1968 to
22 February 1969.  He then served in the RVN from 11 March to 29 July 1969.  During his tour in the RVN, he was promoted to the rank of specialist five, pay grade E-5 on 28 July 1969.

Upon his return to the United States, he received an HD on  24 September 1969,  for his first period of service of 1 year, 6 months, and 7 days.  On
24 September 1969, a DA Form 3082-R (Statement of Medical Conditions) was completed in connection with his reenlistment stating that he had no change in his medical condition. 

On 25 September 1969, at the age of 21, he immediately reenlisted for 
6 years as a cook and was assigned to the Medical Company at Fort Wolters, Texas.

While assigned to Fort Wolters, he received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, on 25 February 1970 for failing to go to his appointed place of duty and after his arrival was found asleep in the latrine. His punishment was to forfeit $15.00 pay.

The applicant was then assigned to two separate duty stations for short periods of time beginning 2 May 1970, at Fort Sill, Oklahoma, for 7 months and then from 25 January 1971 at Fort Jackson, South Carolina, for 2 months.

On 16 March 1971, he was assigned to the 38th Engineer Company in Germany.  While stationed in Germany, the applicant received four NJP’s.  The first was for dereliction in his performance of duty, by failing to prepare equipment for inspection on 29 February 1972; the second on 5 May 1972, for wrongful possession of 2 grams of marijuana; the third on 14 July 1972 for being absent from duty; and the fourth on 27 February 1973, for wrongful possession of heroin. While his punishments include forfeiture of pay for each incident, he retained the duty of First Cook.  He did not appeal these punishments.  

Following his assignment to Germany, he was transferred to Fort Sill, Oklahoma, on 14 March 1973.  While assigned to his new unit, he received three more NJP’s on 25 July 1973, 28 November 1973 and 15 February 1974 for four instances of failure to go to his appointed place of duty.  His punishments include forfeiture of pay, reduction to pay grade E-4, then to pay grade E-3, and restriction to base.

On 12 April 1974, the applicant was convicted by a special court-martial, contrary to his plea of attempting to steal gasoline with the value of less than $50.00 from another soldier on 10 February 1974.  He was sentenced to be reduced to pay grade E-1 and to receive a BCD.

On 22 May 1974, another DA Form 3092 was completed, this time in connection with being placed on excess leave, which stated there were no medical problems.  On 30 May 1974 he was placed on excess leave pending appellate review.

On 17 November 1975, Special Court-Martial Order 44, Headquarters, US Army Field Artillery Center and Fort Sill, Oklahoma, announced that his conviction had been affirmed, that Article 71C, Uniform Code of Military Justice, having been complied with, that his BCD would be executed.

On 15 December 1975, the applicant was discharged with a BCD.  He was credited with 6 years 2 months and 11 days of active service and no lost time.  He was awarded the National Defense Service Medal, the Republic of Vietnam Campaign Medal w/60 Device.

On 25 April 1984, the applicant sought a discharge upgrade through the Army Discharge Review Board (ADRB).  After a thorough review of his case, the ADRB denied his request on 29 January 1985.  

The statutory authority under with 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, and advisory opinion(s), 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.  Notwithstanding his completion of training, one tour of duty in the RVN, an HD in 1969, reaching pay grade E5, his subsequent record of service from 1970-1975 shows a pattern of misconduct.  The applicant’s behavior clearly demonstrated his unwillingness or inability to further perform his duties as a soldier consistent with the Army standards for acceptable personal conduct and performance by military personnel.

3.  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.

4.  The applicant's contentions which relate to evidentiary and procedural matter’s which were finally and conclusively adjudicated in the court-martial appellate process, and furnish no basis for recharacterization of the discharge.

5.  The applicant has submitted no probative medical evidence of any mental problems upon his return from the RVN in July 1969.  In fact, he was medically cleared to reenlist less than 2 months later in September 1969.

6.  The applicants current situation, while unfortunate, does not provide a basis for the Board to grant clemency in this case.

7.  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

__JNS       __RWA      RGH          DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999017410	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	1999-05-19	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	1975-12-15	
DISCHARGE AUTHORITY	AR .635-200	
DISCHARGE REASON	A68.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.00	
2.	A01.13	
3.	A92.23	
4.	A92.35	
5.		
6.