APPLICANT REQUESTS:  In effect, that his bad conduct discharge (BCD), received as the result of his conviction by a special court-martial, be upgraded to one issued under honorable conditions.

APPLICANT STATES:  That his youth and immaturity impaired his ability to serve.  He adds that he has been a good citizen since his discharge.

COUNSEL CONTENDS:  NA

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

He was born on 13 December 1948 and was inducted into the Army of the United States for 2 years on 18 June 1969; he was 20 years and 6 months old.  Upon induction, he was given aptitude tests which revealed that his Armed Forces Qualification Test (AFQT) score of 7 which placed him in the lowest mental category, Category V.  His General Technical (GT) score [roughly equivalent to his Intelligence Quotient, or IQ, score] was a very low 55.  Deemed incapable of successfully completing Basic Combat Training (BCT), he was placed in a remedial training program from 25 June 1969 to 8 August 1969.  Following completion of this remedial program, he was enrolled in BCT at Fort Benning, Georgia, and Advanced Individual Training (AIT) at Fort McClellan, Alabama, where he was trained as a combat infantryman.  Following AIT, he was sent to Vietnam and assigned to the 1st Cavalry Division as a rifleman, reporting on 16 February 1970.

In Vietnam, the applicant was tried by a special court-martial for refusing to walk the “point” while on patrol in Cambodia; for refusing to go out with his squad on night patrol; for leaving his appointed place of duty in the field by getting aboard the resupply helicopter and returning to base camp without permission; for refusing a direct order to return to the field; for assaulting a fellow soldier on two separate occasions; for assaulting an NCO with a mortar round and a sledge hammer; and for threatening an officer and behaving with disrespect toward an officer; all of the above offenses occurring between 13-21 May 1970.  In spite of his pleas of not guilty to all charges and specifications, the applicant was convicted on all counts and sentenced to a BCD, 5 months’ confinement at hard labor, and forfeiture of $50 per month for 5 months.

The applicant was confined in the stockade at Long Binh, Vietnam.  Upon completion of his sentence to confinement, he was transferred to the Personnel Control Facility, Fort Lewis, Washington, and released on excess leave pending completion of appellate review of his conviction.  His BCD was executed on 23 January 1971.  He had 1 year, 1 month, and 20 days of creditable service and 165 days of lost time due to absence without leave and confinement.

The applicant requested a discharge upgrade from the Army Discharge Review Board (ADRB).  On 11 February 1980, the ADRB denied his request.

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, 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.  The Board dismissed the applicant’s contention that he was too young and immature when he was inducted into military service, noting that he was more than 21 years old when he committed his court-martial offenses.  While the Board acknowledges the applicant’s good post-service conduct, such conduct is not sufficient to overcome the indisciplines committed while a soldier.

3.  The Board also takes note of the applicant’s low AFQT and GT scores, but believes that he still was able to distinguish right from wrong and knew that his behavior was not only inappropriate, but potentially dangerous to his fellow soldiers.

4.  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

                                DENY APPLICATION




						Karl F. Schneider
						Acting Director