MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        


                  BOARD DATE: 7 October 2003
                  DOCKET NUMBER: AR2003086022

         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
Ms. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Ms. Shirley Powell		Member
Mr. Robert Duecaster		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: In effect, that clemency in the form of an honorable discharge or general discharge be granted.

APPLICANT STATES: In effect, that he was not given adequate counsel or allowed to defend himself at his special court-martial. He contends that a Judge Advocate General lawyer told him to apply for a discharge upgrade 30 years ago because of his inadequate counsel and the errors conducted at his court-martial.

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

The applicant was inducted on 23 April 1969. He served as a cook and was honorably discharged on 16 January 1970 for immediate reenlistment. He reenlisted on 17 January 1970 for a period of 3 years. He served as a power generator equipment operator in Vietnam from 13 April 1970 until he was medically evacuated back to the United States on 25 May 1970.

On 9 September 1970, the applicant was convicted by a special court-martial of being absent without leave (AWOL) from 26 June 1970 to 18 August 1970. He was sentenced to forfeit $35 pay per month for 3 months and to be confined at hard labor for 45 days. On 10 September 1970, the convening authority approved the sentence but that portion of the sentence adjudging confinement at hard labor for 45 days was suspended for 3 months.

The applicant was transferred to Vietnam on 1 December 1970.

While in Vietnam, on 21 December 1970, nonjudicial punishment was imposed against the applicant for failure to repair. His punishment consisted of a forfeiture of pay, restriction, and extra duty.

While in Vietnam, on 11 January 1971, nonjudicial punishment was imposed against the applicant for signing an official document with intent to deceive, breaking restriction, and violating a lawful general regulation. His punishment consisted of a reduction to pay grade E-2.

While in Vietnam, on 26 July 1971, the applicant was convicted consistent with his pleas by a special court-martial of possessing heroin (two specifications) and carrying a concealed weapon (9-inch knife). During his trial, the applicant was asked by the military judge if he had been given adequate time and opportunity to prepare and discuss his case with his defense counsel, had he fully prepared the case with his defense counsel, and if he was satisfied that his defense counsel's advice was to his best interests, and the applicant replied "yes" to each question. He was sentenced to be discharged from the service with a bad


conduct discharge, confined at hard labor for 4 months, forfeit $70 pay per month for 4 months, and to be reduced to pay grade E-1. On 21 August 1971, the convening authority approved the sentence.

The applicant was transferred back to the United States on 15 August 1971.

On 11 November 1971, the United States Army Court of Military Review affirmed the findings of guilty and determined that only so much of the sentence as provided for a bad conduct discharge, confinement at hard labor for 2 months, forfeiture of $70 pay per month for 2 months, and reduction to the grade of E-1 should be approved. The bad conduct discharge was ordered executed on 3 December 1971.

Accordingly, the applicant was discharged on 24 January 1972 pursuant to the sentence of a special court-martial. He was issued a Bad Conduct Discharge Certificate. He had served 2 years, 6 months and 22 days of total active service with 69 days lost due to AWOL and confinement.

Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel. Paragraph 3-11 of this regulation states that a soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed.

Section 1552(f), Title 10, United States Code states that the ABCMR can only review records of court-martial and related administrative records to correct a record to accurately reflect action taken by reviewing authorities under the Uniform Code of Military Justice (UCMJ) or to take clemency action.

Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

Army Regulation 635-200, paragraph 3-7, provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently
meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the soldier’s separation specifically allows such characterization.

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 considered the applicant's contentions that he was not given adequate counsel, that he was not allowed to defend himself at his special court-martial and that there were errors conducted at trial. However, the applicant has failed to show that the special court-martial proceedings were not conducted in accordance with law and regulations applicable at the time or that he was denied due process. The record of trial shows the applicant was satisfied with the preparation of his case and his defense counsel's advice.

3. The Board reviewed the applicant’s record of service which included two special court-martial convictions and two nonjudicial punishments and determined that his quality of service did not meet the standards of acceptable conduct and performance for Army personnel. Therefore, the Board determined that clemency in the form of an honorable discharge was not warranted in this case.

4. The Board also determined that the offenses for which the applicant received his second special court-martial conviction (possession of heroin and carrying a concealed weapon) were too serious to grant clemency in the form of a general discharge.

5. The applicant has failed to show through the evidence submitted with his application or the evidence of record that the actions taken in his case were in error or unjust.

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

FNE____ SP_____ RD______ DENY APPLICATION

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

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INDEX

CASE ID	AR2003086022
SUFFIX
RECON
DATE BOARDED	20031007
TYPE OF DISCHARGE	BCD
DATE OF DISCHARGE	19720124
DISCHARGE AUTHORITY	AR 635-200
DISCHARGE REASON	Result of court-martial
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.0200
2.
3.
4.
5.
6.