MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 16 January 2003
         DOCKET NUMBER: AR2002071628

         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. Raymond V. O'Connor, Jr.		Chairperson
Mr. Arthur A. Omartian		Member
Ms. Marla J. Troup		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.

APPLICANT STATES: That he used drugs in Vietnam in order to cope with the horrors of war.

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

He was born on 6 June 1953 and enlisted in the Regular Army for 3 years on 31 August 1970 with parental consent by both parents. While in a training status, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for failure to follow a lawful order from a noncommissioned officer. His punishment was 14 days' extra duty and restriction. Following completion of all required military training, he was assigned to a unit at Fort Lee, Virginia, with duty as a cook. He served at Fort Lee from May to October 1971.

On or about 5 November 1971, the applicant arrived in the Republic of Vietnam for a tour of duty. He was initially assigned to the 165th Transportation Company which was located at Firebase Phu Loi, near Cam Rahn Bay. While assigned to this unit, the applicant twice accepted NJP for failing to go to his place of duty. For his first offense, he was punished with a $25.00 fine, and for his second offense, he was punished with a $25.00 fine and a suspended reduction from Private First Class (E-3) to Private (E-2).

On 3 February 1972, the applicant received a rehabilitative transfer to the 605th Transportation Company, also located at Firebase Phu Loi. He served in this unit until on or about 18 April 1972 when he was again given a rehabilitative transfer, this time to the 60th Aviation Company located at Ninh Hoa, Republic of Vietnam. When he reported to his new unit, the applicant voluntarily entered a drug amnesty program. On 20 April 1972, he was sent to the Nha Trang Drug Rehabilitation Center, Camp McDermott, Nha Trang, Republic of Vietnam, where, on 29 April 1972, he absented himself without proper authority (went AWOL) for an unknown period of time. The record does not indicate whether he was punished for this offense.

On 8 July 1972, the applicant was administered a urinalysis test at his unit and he tested positive. On 20 July 1972, he was transferred to the US Army Drug Treatment Center, Long Binh, Republic of Vietnam, for administrative separation processing. He received a physical examination on 3 August 1972 and a mental status evaluation on 5 August 1972 and was cleared for separation processing. On 8 August 1972, he was notified that he was being processed for separation under the provisions of Army Regulation (AR) 635-212 for unfitness. On the same date, he consulted with legal counsel who explained his rights. The applicant acknowledged notification, waived his rights, and declined to make a statement.

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On 9 August 1972, the approving authority directed that the applicant be separated from the Army with a General Discharge (GD) under the provisions of AR 635-212 by reason of unfitness. However, the approving authority suspended the separation for 6 months in order to afford the applicant a probationary period to demonstrate successful rehabilitation. The applicant was transferred to the Medical Holding Detachment, US Army Medical Department Activity, Fort Monmouth, New Jersey. He arrived at Fort Monmouth on/about 18 August 1972 and was further assigned to Headquarters and Headquarters Company, Headquarters Installation Support Activity, Fort Monmouth, as a cook. On 21 August 1972, he went AWOL for 1 day (there is no indication in the record that he was punished for this offense).

On 5 January 1973, the applicant was tried and convicted by a general court-martial for possession of heroin and marijuana, an offense committed while he was in Vietnam. He was sentenced to a BCD, total forfeiture of all pay and allowances, confinement at hard labor for 6 months, and reduction to Private (E-1). He was transferred to the Fort Dix, New Jersey, Area Confinement Facility and then to the United States Disciplinary Barracks, Fort Leavenworth, Kansas, where he served out his sentence to confinement. Following his release from confinement, he was transferred to Fort Dix in June 1973 to await completion of the final appellate review on his conviction.

The applicant went AWOL from 24 August 1973 to 14 March 1974. Upon his return, his DA Form 20 (Enlisted Qualification Record) indicates that he was placed in confinement at the Fort Dix Area Confinement Facility from 14 May 1974 to 5 September 1974. On 6 September 1974, he was placed on excess leave.

On 24 October 1974, the Army Court of Military Review affirmed the findings of guilty and the sentence in the applicant's general court-martial case. On 15 January 1975, the applicant's BCD was executed. He had 2 years, 9 months, and 8 days of creditable service and 559 days of lost time. He had a total of 8 months and 27 days of service in Vietnam spent at base camp in Phu Loi and Ninh Hoa, or in drug rehabilitation at Nha Trang and Long Binh.

Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, United States Code, Section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records is not empowered to change a discharge due to matters which should have been raised in the appellate process, rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.

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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 was a cook in a base camp environment. Although he may have come under sporadic attack at various times, it is doubtful that he experienced the "horrors of war" to the same degree as a combat infantryman operating in a field environment for extended periods.

3. The applicant did not have to resort to the use of illegal drugs to cope with whatever levels of stress he may have been experiencing. However, once he began using drugs, the Army made a concerted effort to help him by sending him to drug rehabilitation and by affording him a probationary period before imposing a discharge for unfitness. The applicant squandered the opportunities presented him, continued to use heroin and marijuana, and was convicted by a general court-martial.

4. 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.

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

__rvo___ __aao___ __mjt___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002071628
SUFFIX
RECON
DATE BOARDED	20030116
TYPE OF DISCHARGE	BCD
DATE OF DISCHARGE	19750115
DISCHARGE AUTHORITY	AR 635-200 C11
DISCHARGE REASON	A60.00
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	105.0000
2.	110.0000
3.
4.
5.
6.