MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           16 May 2002                   
	DOCKET NUMBER:   AR2001065814

	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. Robert J. McGowan		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Roger W. Able		Member	
	Ms. Paula Mokulis		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 a General Discharge (GD).

APPLICANT STATES:  That at the time of his court-martial, his defense counsel never raised the issues of “post-Vietnam syndrome, insomnia, and depression.”  In support, he provides:  a letter from the Sheriff of Wyoming County, New York, which states that the applicant does not have a criminal record and is a good citizen; a letter from his employer attesting to his steady employment record; three letters of support from relatives and friends; a personal letter; and a copy of his DD Form 214, Certificate of Release or Discharge From Active Duty.

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

He was inducted into the Army of the United States on 9 February 1966.  Trained as a cannoneer, he spent 1 year in Vietnam from 7 August 1966 through 6 August 1967.

The applicant’s service records reflect numerous disciplinary infractions.  He accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, on 6 June 1966 for being absent without proper authority (AWOL) from 4-5 June 1966.  He also accepted NJP on 22 October 1966 for failure to go to his appointed place of duty.

The applicant was convicted by three courts-martial.  On 21 November 1967, he was found guilty by a special court-martial of being AWOL from 14 October 1967 to 10 November 1967, and he was sentenced to a one grade reduction to Private First Class and to forfeit $75.00 per month for 3 months.  On 23 January 1968, he was again found guilty by a special court-martial of being AWOL from 24-26 November 1967 and 26 November 1967 through 17 December 1967, and he was sentenced to reduction to Private (E-1), to forfeit $68.20 per month for 3 months, and 3 months' confinement at hard labor.  The convening authority suspended the 3 months' confinement; however, the suspension was vacated on 13 March 1968.  On 8 June 1968, he was found guilty by a general court-martial of being AWOL from 16 February 1968 through 12 March 1968 and of escape from confinement.

Following his general court-martial conviction, he was transferred to the United States Disciplinary Barracks to serve a 1-year sentence to confinement, total forfeiture of all pay and allowances, and a dishonorable discharge.  Upon appellate review, the United States Army Board of Review affirmed the applicant's conviction and only so much of the sentence as provided for 1 year of confinement, total forfeiture, and a bad conduct discharge.  On 24 January 1969, the Army Clemency and Parole Board announced that it remitted the unexecuted portion of the sentence to confinement.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, paragraph 3-11, provides that a soldier will be given a BCD pursuant only to an approved sentence to a general court-martial or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

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 this requirement.

2.  There is no evidence that the applicant was suffering from depression or stress caused by his service in Vietnam.  Many soldiers served in Vietnam and returned to complete their periods of service without resorting to the types of misconduct that led to the applicant’s BCD.

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 assertion that he has been a good citizen is accepted by the Board.  However, this fact is not so extraordinary as to demonstrate that the discharge is now unjust.

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

___fne___  ___pm __  ___rwa__  DENY APPLICATION

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

INDEX

CASE ID	AR2001065814	
SUFFIX		
RECON		
DATE BOARDED	20020516	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	19690129	
DISCHARGE AUTHORITY	AR 635-200 C11	
DISCHARGE REASON	A71.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	105.0000	
2.	110.0000	
3.		
4.		
5.		
6.