MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 11 March 2003
         DOCKET NUMBER: AR2002074786

         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
Mrs. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. Samuel A. Crumpler		Chairperson
Mr. Ted S. Kanamine		Member
Ms. Shirley L. Powell		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 be upgraded to a discharge under honorable conditions.

APPLICANT STATES: That the sentence did not fit the circumstances of the alleged crime; the alleged crime never took place; there were 10 other soldiers who were supposed to have been involved in the alleged incident; he was not there when the alleged incident took place but was in the field at Quang Tri when it took place; he had no part in the incident; he was wrongly convicted. In addition, his parents signed for him to enter the Army. He was immature at the time he enlisted. He had to wait until he was 18 before he was sent to Vietnam. His GT (general technical) score was 62 and his AFQT (Armed Forces Qualification Test) score was 16 (category IV). He does not feel he should have been allowed to enlist. By today’s standards he would not have been qualified to enter the Army or receive training as a truck driver. He feels that after an objective evaluation is made his discharge will be upgraded to one under honorable conditions. He provides no supporting evidence.

COUNSEL CONTENDS: Counsel makes no additional contention.

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

The applicant was born on 12 October 1951. He enlisted in the Regular Army on 18 March 1970 at age 18 for training in Army Career Group 64 (Motor Transportation). There is no evidence of a parental consent form in his records. He had attended 3 years of high school. His AFQT score was 16 (category IV).
He completed basic combat training and advanced individual training and was awarded military occupational specialty (MOS) 64A (Light Vehicle Driver). He was later awarded MOS 64C (Motor Transport Operator).

The applicant arrived in Vietnam and was first assigned to the 666th Transportation Company on or about 17 August 1970.

On 12 December 1970, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for exceeding the legal speed limit while operating a government vehicle.

On 15 March 1971, the applicant accepted NJP under Article 15, UCMJ for entering a known house of prostitution in violation of a lawful general regulation.

On 17 April 1971, the applicant was transferred to the 805th Transportation Company. On 26 May 1971, he was transferred to the 515th Transportation Company. On 27 July 1971, he was transferred to the 585th Transportation Company.


On 28 September 1971, the applicant accepted NJP under Article 15, UCMJ for being disorderly in a public place, to wit: by standing on the outside of his truck while it was moving, knocking hats off and swinging a pipe, approximately four feet long, at Vietnamese pedestrians.

On 19 December 1971, the applicant was convicted by a special court-martial of wrongfully communicating a threat and placed in confinement. The record of trial is not available; however, a summary of evidence prepared by the Staff Judge Advocate (SJA) for the convening authority is available.

The SJA summary stated that a witness testified that the applicant and one other soldier walked up to him (apparently knowing that the witness trained as a combat engineer and had some knowledge of explosives) on 11 November 1971 and asked him if he could get some time or safety fuses. The witness asked them why they needed the fuse and the applicant replied that they wanted to make a firecracker with C4. The witness asked them who they wanted to kill. The other soldier replied that they were not going to kill "him," only bang "him" up a bit. The applicant further told the witness that they wanted to get “him” medically evacuated and off their backs. The name of “him” was never mentioned but the witness observed that only the commander of the 585th Transportation Company fit the description given him.

The SJA summary stated that the applicant testified that on 11 November 1971 he and the other soldier went close to the witness’s hootch to do some work. They began talking to the witness, who was trying to take the head off an old smoke bomb he had found. The applicant stated they got into a discussion of C4. He admitted asking the witness what C4 would do if it was thrown into a hootch. He testified that he never heard the witness ask who they were going to kill, that he never stated they were not going to kill anybody but just bang "him" up a bit, that he never heard the other soldier say only bad enough to get "him" medically evacuated and off their backs, and that he did not tell the witness that they wanted to make a firecracker. The applicant testified that he recalled asking the witness where time fuses were made and stored and if a can of C4 could be set off with a time fuse. He also stated that there was no reference in the conversation to a captain.

The SJA summary noted that several other individuals testified that the witness’s reputation for truth and veracity in the company was good and that the applicant’s reputation for truth and veracity was not good.

Both the applicant and the other soldier received the same adjudged sentences – confinement at hard labor for 6 months, a forfeiture of $178.00 pay for 6 months, and a bad conduct discharge. The SJA noted that the sentence imposed by the court was the maximum punishment allowed by law. The SJA noted, in part, that due to the applicant’s past record of Article 15s, the sentence was not excessive. In part because the other soldier had a better disciplinary record, the SJA recommended that the other soldier's sentence to a bad conduct discharge be suspended for 6 months after his release from confinement.

The applicant’s adjudged sentence was approved by the convening authority on 4 April 1972. It is not known what the other soldier’s approved sentence was.

On 19 May 1972, the applicant was restored to duty pending completion of appellate review. The appellate review action is not available. Headquarters, U. S. Disciplinary Barracks, Fort Leavenworth, KS Special Court-Martial Order 77, dated 4 December 1972, noted that the applicant’s sentence was affirmed.

On 11 December 1972, the applicant was discharged with a bad conduct discharge pursuant to his sentence by court-martial.

Army Regulation 635-200 governs the separation of enlisted personnel. In pertinent part, it states that an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s). A general discharge is a separation from the Army under honorable conditions. It is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

Title 10, U. S. Code, section 1552(f) states that, with respect to records of courts-martial, the Board's action may extend only to action on the sentence of a court-martial for purposes of clemency.

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. Trial by court-martial was warranted by the gravity of the offense charged. Contrary to the applicant’s contention that he was in the field when the incident took place, the evidence of record shows that he testified at his trial that he was where the incident took place.

3. Contrary to the applicant's contention that 10 other soldiers were supposed to have been involved in the incident, the available evidence shows that only he and one other soldier (other than the primary witness and the intended victim) were involved in the incident.

4. The applicant’s contentions that the alleged crime never took place relate to evidentiary matters which presumably were finally and conclusively adjudicated in the court-martial appellate process and furnish no basis for recharacterization of the discharge.

5. In addition, the applicant was 18 years old when he enlisted. There is no evidence to show that parental consent was obtained or required to effect his enlistment. The Board notes his GT and AFQT scores; however, that did not prevent him from successfully completing basic combat training and advanced individual training. While it is true he most likely would not be accepted for enlistment today, he served during wartime when enlistment/induction standards were considerably lower.

6. Considering the available testimony, conviction and discharge were effected in accordance with applicable law and regulations. Considering the applicant’s record of service, the discharge appropriately characterizes the misconduct for which he was convicted and a discharge under honorable conditions is not warranted.

7. 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

__sac___ ___tsk___ __slp___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002074786
SUFFIX
RECON
DATE BOARDED	20030311
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	105.01
2.
3.
4.
5.
6.