MEMORANDUM OF CONSIDERATION


IN THE CASE OF:       


	BOARD DATE:            30 September 1998                 
	DOCKET NUMBER:    AC96-07029

	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

Mr. Joseph A. Adriance

Analyst


  The following members, a quorum, were present:


Ms. Irene N. Wheelwright

Chairperson

Mr. Raymond V. O’Connor Jr.

Member

Mr. James M. Alward

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:  In effect, that his undesirable discharge (UD) be upgraded.

APPLICANT STATES:  In effect, that his discharge should be upgraded in order for him to obtain health care benefits.

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

On 22 April 1971 the applicant entered the Regular Army for a period of 3 years at the age of 19.  The applicant successfully completed basic training and advanced individual training (AIT).  Upon completion of training he was awarded military occupation specialty (MOS) 52B (Power Generation Equipment Operator) and assigned to overseas duty in Korea for his first permanent duty station.

The applicant’s record contains no significant acts of valor, achievement, or service warranting special recognition. However, there is a history of documented disciplinary infractions which includes his acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the UCMJ, on two separate occasions; and his undergoing trials by both summary and special court-martial. 

On 28 August 1972 the applicant accepted an NJP for failure to obey a lawful order.  His punishment for this offense included reduction to private/E-2, and 
14 days restriction. 

On 6 October 1972 the applicant was tried by summary court-martial for three charges.  Charge I was for violation of Article 109 for destruction of property; Charge II was for violation of Article 128 for striking a Korean national; and Charge III was for violation of Article 134 for breaking restriction.  The applicant was found guilty of Charges I and III and not guilty of Charge II.  The resultant sentence included reduction to private/E-1, forfeiture of $192.00, and restriction for 49 days (everything after 15 days suspended).

On 4 April 1973 the applicant accepted a second NJP for being AWOL from 
30 March to 4 April 1973, and for disobeying a lawful order from a commissioned officer on 30 March 1973.  He was punished with a forfeiture of $40.00.

On 13 March 1974 the applicant was tried by special court-martial for two charges with a total of three specifications. Charge I contained two specifications of violation of Article 86 of the UCMJ for being AWOL from 31 October to 
5 November 1973 and again from 28 December 1973 to 2 January 1974.  
Charge II was for violation of Article 134 for willfully possessing a controlled substance (marijuana).  He was found guilty of all specifications and charges and sentenced to be discharged with a bad conduct discharge (BCD); to be confined at hard labor for 3 months; and to forfeit $217.00 per month for 3 months.

The Special court-martial was promulgated in Special Court Martial Order Number 100, Headquarters, Fort Carson and the 4th Infantry Division (Mechanized), Fort Carson, Colorado 80913, dated 17 June 1974.  On 29 May 1974 the applicant went AWOL, while pending the appellate review of his court-martial, and remained away until he was arrested by Indiana law enforcement officials for drug offenses on 17 September 1975.  

The applicant was ordered to serve 3 years in an Indiana drug rehabilitation hospital and his BCD from the Army was processed while he was hospitalized.  He underwent a separation physical on 21 May 1976 at the Richmond Indiana State Hospital, which reflected three types of drug dependence.  However, prior to his AWOL, there is no medical evidence of record which documents any drug dependence.  

Special Court-Martial Order Number 59, Department of the Army, Headquarters, Fort Carson and the 4th Infantry Division (Mechanized), Fort Carson, Colorado 80913, dated 7 March 1975 finally affirmed the court-martial and directed the BCD be executed.  Accordingly, on 28 May 1976 the applicant was discharged after completing 2 years, 9 months, and 24 days of active military service and accruing 823 days of time lost due to AWOL and confinement.

On 18 May 1979 the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade of to his discharge and found that the discharge process was proper in all respects.

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 Board concurs with the findings and conclusions of the ADRB and presumes that the applicant's administrative separation was accomplished in compliance with applicable regulations. There is no indication of procedural errors by the ADRB which would tend to have substantially jeopardized the applicant's rights.




2.  The Board determined that the trial by court-martial was warranted based on the gravity of the offenses with which the applicant was 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.  

3.  Title 10, United States Code, section 1552, as amended does not permit any redress by this Board which would disturb the finality of a court-martial conviction.

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




						Loren G. Harrell
						Director