MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        


                  BOARD DATE: 9 September 2003
                  DOCKET NUMBER: AR2003085933

         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:

Ms. Shirley L. Powell		Chairperson
Mr. Walter T. Morrison		Member
Mr. Thomas A. Pagan		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 honorable or that his court-martial be overturned.

APPLICANT STATES: That he was assaulted by another soldier without warning or provocation. The other soldier physically assaulted him and made threatening gestures upon his person with a 2 by 4 board. Although he made an attempt to leave the area, he still felt threatened and found no other recourse but to defend himself. He served his country honorably during a time of war. Since his return from Vietnam, his anger control issues have been uncontrollable and he has since been diagnosed with post-traumatic stress disorder. In addition, he was incarcerated for 1 year for this incident. He provides no supporting evidence.

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

He initially enlisted in the Regular Army on 28 June 1966. He completed basic combat training and advanced individual training and was awarded military occupational specialty 94B (Cook). While in Thailand, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) on 5 April 1967 for failing to go to his billets for bed check and for disobeying a lawful order to forfeit his class "A" pass. He received conduct and efficiency ratings of "fair" during his assignment in Thailand. He received conduct and efficiency ratings of "good" during his assignment at Key Largo, FL (26 December 1967 – 5 May 1968). He received conduct and efficiency ratings of "fair" during his assignment in Vietnam (21 June 1968 – 8 June 1969 while a cook with the 568th Medical Company). He was honorably released from active duty on 13 June 1969.

The applicant reenlisted in the Regular Army on 24 September 1969. His DA Form 20 (Enlisted Qualification Record) shows he had 1 day of being absent without leave (AWOL) on 21 September 1970. On 13 December 1971, he accepted NJP under Article 15, UCMJ for being AWOL from 7 December to on or about 13 December 1971. He accepted NJP under Article 15, UCMJ on 2 May 1972 for being derelict in the performance of his duties by failing to report and take part in alert riot control operations as it was his duty to do.

During the applicant's second enlistment, his conduct and efficiency ratings were rated as "excellent" until his assignment to Korea (at which time his DA Form 20 no longer shows any ratings).

On 30 August 1973, the applicant pleaded guilty to and was convicted by a general court-martial of committing an aggravated assault by cutting another soldier on the face and body with a broken champagne bottle and intentionally inflicting grievous bodily harm upon him on 2 June 1973 and for being AWOL from 18 June 1973 to on or about 19 July 1973.
During the investigation leading up to the trial, several conflicting sworn statements were obtained from the applicant, the victim, the victim's wife, and other witnesses. According to the victim and his spouse, the applicant approached the victim's wife and began speaking to her in a boisterous manner. The victim approached the applicant and warned him to leave his wife alone. The victim believed the applicant was going to hit him so he struck the applicant first. The applicant left the scene with friends and walked towards the New House Club. Shortly afterwards, the applicant returned with a broken champagne bottle and swung the bottle at the victim. The victim picked up a chair to protect himself, hit the applicant with the chair but then lost the chair. The applicant then cut the victim with the bottle, who then picked up a pole and hit the applicant with the pole. The applicant then grabbed the victim around the neck and cut him again. The victim finally got the applicant on the ground and beat him. This version of the incident is corroborated at least in part by other witness statements.

According to the applicant, he struck up a friendly conversation with the victim's wife and the victim got up and struck him and knocked him to the ground. The applicant picked himself up and walked away, went to the New House Club, grabbed a bottle, broke it, and went back to confront the victim. The victim saw him coming, picked up a chair, and hit him with it. The victim also hit him with a stick. He cut the victim after the victim dropped the chair and stick.

Counsel requested clemency due to the applicant's 7 prior years of good service with excellent conduct and efficiency ratings, his service in combat in Vietnam, his reasons for going AWOL (despair after being told he would be court-martialed after he was hospitalized for injuries received during the incident), and because he was the sole support of his wife and 2 children. The applicant's approved sentence was confinement at hard labor for 10 months (the adjudged sentence to confinement was for 12 months), a forfeiture of $100 pay for 10 months, and a bad conduct discharge.

On 11 June 1974, the U. S. Court of Military Review affirmed the findings and the sentence.

On 26 August 1974, the applicant was discharged with a bad conduct discharge pursuant to his sentence by court-martial. He had completed a total of 6 years, 11 months, and 26 days of creditable active service and had 323 days of lost time (39 days AWOL and 284 days confinement).

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. 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, as amended, precludes any action by this Board which would disturb the finality of a court-martial conviction. Section 1552(f) states that, with respect to records of courts-martial tried or reviewed under the UCMJ, 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. The Board notes that the applicant departed Vietnam (where he was assigned to duties as a cook with a medical company) in June 1969 shortly before his separation from his first period of service. The Board also notes that, even though he received an honorable characterization of service, his conduct and efficiency had been rated during several assignments as less than excellent.

3. The Board also notes that even though the applicant's conduct and efficiency had been rated as excellent during his second enlistment, he had accepted NJP under Article 15, UCMJ on two occasions. He had two periods of AWOL prior to the period for which he was court-martialed during his second enlistment.

4. There is no evidence that the applicant had "anger issues" at the time of the incident (4 years after he departed Vietnam) nor did he make a defense that he had an uncontrollable urge to hurt the victim. The evidence shows that the applicant served less than 1 year in confinement and less than the adjudged sentence.

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

__slp___ __wtm___ __tap___ DENY APPLICATION

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

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INDEX

CASE ID	AR2003085933
SUFFIX
RECON
DATE BOARDED	20030909
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.