MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 11 September 2001
         DOCKET NUMBER: AR2001060314

         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:

Ms. Celia L. Adolphi		Chairperson
Mr. Curtis L. Greenway		Member
Mr. Donald P. Hupman, Jr.		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)

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APPLICANT REQUESTS: That his Bad Conduct Discharge (BCD) be upgraded to a General Discharge (GD).

APPLICANT STATES: In effect, that he served in combat for a protracted period of time during the Vietnam War and that this caused combat fatigue; that his exhausted mental state was the reason for his misconduct. He also states that as an American of Hawaiian descent, he was the victim of racial discrimination. He adds that he served his nation with honor during the war and deserves to have his discharge upgraded.

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

He enlisted in the Regular Army for 3 years on 31 August 1971 and was sent to Fort Ord, California. Following the completion of all required military training, he was awarded military occupational specialty (MOS) 11B, Infantryman, and sent to Vietnam.

The applicant arrived in Vietnam on 2 May 1972 and was initially assigned to 1/12 Cavalry, 3^rd Brigade (Separate), 1^st Cavalry Division. On 26 June 1972, he was reassigned to Company B, 229^th Aviation Battalion. On 5 August 1972, he was further reassigned to Company E, 14^th Infantry. Company E served in Vietnam from 30 June 1971 to 20 November 1972 as a separate rifle security company assigned to the U.S. Army Support Command with the mission of guarding the Long Binh support facility.

The applicant was administered nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, on two occasions while still in basic training at Fort Ord. On 20 February 1972, he became involved in a fist fight with a fellow soldier at a 24-hour snack bar, and he was also in possession of an altered Military Identification Card. His punishment was administered on 22 February 1972 and consisted of reduction to private/E-1, forfeiture of $75 per month for 1 month, and 14 days' restriction. On 4 March 1972, he departed his unit in an AWOL (absent without leave) status and remained absent until 10 March 1972. He received NJP on 13 March 1972 and was punished by forfeiture of $96 per month for 1 month.

In Vietnam, the applicant was performing sentinel duty at Long Binh Post when he was discovered asleep in his guard tower at 0547 hours, 26 August 1972. On 30, 31 August and 2, 3 September 1972, he failed to go at the time prescribed to his appointed place of duty. On 4 September 1972, he disobeyed the lawful order of a superior noncommissioned officer (NCO). Also on 4 September 1972, he threatened to kill his commanding officer and behaved with disrespect towards a first lieutenant. The applicant was placed in pre-trial confinement and court-martial charges were preferred against him.

On 7 October 1972, the applicant was tried by a special court-martial. He pleaded guilty to sleeping on guard duty, threatening to kill his commanding officer, and being disrespectful towards a first lieutenant; he pleaded not guilty to failing to go to his appointed place of duty and disobeying a senior NCO. He was found guilty of all charges save failing to go to his appointed place of duty and he was sentenced to be reduced to private/E-1, to forfeit $100 per month for 2 months, to be confined at hard labor for 2 months, and to be separated with a BCD. He served his sentence to confinement at the US Army Vietnam Installation Stockade.

The applicant departed Vietnam for Fort Lewis, Washington in early December 1972. On 11 December 1972, he was placed on excess leave pending completion of the appellate review of his court-martial conviction. On 20 February 1973, the United States Army Court of Military Review upheld the applicant's conviction and affirmed the sentence. On 2 March 1973, the BCD was executed. The applicant had 1 year, 2 months, and 10 days of creditable service and 112 days of lost time due to AWOL and confinement. His DD Form 214, Report of Transfer or Discharge, reflects that he was awarded the National Defense Service Medal, Vietnam Service Medal, and Republic of Vietnam Campaign Medal.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 3 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 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. The applicant's contention that he was engaged in protracted combat while in Vietnam lacks merit. The applicant spent very little time in field units in Vietnam before being transferred to an infantry company tasked with providing security for Long Binh Post; most of his duty in Vietnam consisted of work details and guard duty. The fact that his DD Form 214 does not reflect the award of the Combat Infantryman Badge suggests that he was never in combat. There is no evidence in the record, nor has the applicant presented any, to show that the applicant's misconduct was, in any way, related to combat duty.

3. The evidence of record shows that the applicant was a substandard soldier given to fighting, disobedience, and showing disrespect towards his superiors. He received two NJPs while still in a training status and his disregard for rules and regulations carried over to his service in Vietnam.

4. There is no evidence in the record, nor has the applicant provided any, to show that he was the victim of racial discrimination.

5. 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.

6. 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

___CLA_ __CLG___ _DPH___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001060314
SUFFIX
RECON
DATE BOARDED	20010911
TYPE OF DISCHARGE	BCD
DATE OF DISCHARGE	19830504
DISCHARGE AUTHORITY	AR 635-200 C3
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	DIRECTOR
ISSUES 1.	105.0000
2.	110.0000
3.
4.
5.
6.