MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:



                  BOARD DATE: 06 NOVEMBER 2003
                  DOCKET NUMBER: AR2003090259

         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. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. Stanley Kelley		Chairperson
Mr. Raymond J. Wagner		Member
Ms. Mae M. Bullock		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)

---

APPLICANT REQUESTS: That his bad conduct discharge be upgraded to general or honorable.

APPLICANT STATES: He is dying from cirrhosis of the liver. Since his second discharge in 1968 he has suffered from 35 years of alcoholism and posttraumatic stress disorder (PTSD). He entered the Army in 1966, earned the Parachutist Badge and the National Defense Service Medal. He was honorably discharged. He reenlisted in 1967 and served in Vietnam. He suffered from battle fatigue and PTSD. A South Vietnamese soldier killed his best friend. One day while on patrol the South Vietnamese soldier made a quick move toward him, and without thinking he shot and killed him. He is a native American and a proud man. He was informed that he was given the bad conduct discharge because he showed no remorse. Ironically, during his trial his commanding officer recommended that he receive the Bronze Star Medal. He will bring dishonor to his children and family if his discharge is not upgraded. Since his discharge his life has been adversely affected. He has spent years in treatment facilities. He regrets killing the South Vietnamese soldier.

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

The applicant enlisted in the Army for three years on 2 June 1966, completed basic, advanced, and airborne training, and in November 1966 was assigned to Fort Bragg, North Carolina as a cannoneer. On 19 June 1967 the applicant was arraigned, tried, and pled guilty to sleeping on post at a summary court-martial. He was sentenced to be fined, reduced in grade, and confined at hard labor for 15 days. The confinement at hard labor was suspended for 30 days.

The applicant was discharged with an honorable characterization of service on 20 July 1967 for the purpose of immediate reenlistment. On 21 July 1967 the applicant reenlisted for 3 years for duty in Vietnam. In September 1967 he was assigned as a cannoneer to Battery A, 2nd Battalion, 320th Artillery, a 101st Airborne Division unit in Vietnam.

General Court-Martial Order Number 3, Headquarters, 101st Airborne Division, dated 2 June 1968, shows that on 27 March 1968 the applicant was arraigned and tried for premeditated murder for shooting a South Vietnamese soldier on or about 9 March 1968. The applicant pled not guilty. He was found guilty of unpremediated murder. He was sentenced to a bad conduct discharge, forfeiture of all pay and allowances, reduction to pay grade E-1, and to be confined at hard labor for 8 years. The sentence was adjudged on 17 April 1968.

The record of court-martial proceedings are unavailable to the Board; however, the applicant's confinement record is available. Contained therein is a 2 June 1968 review of the proceedings by the 101st Airborne Division Staff Judge Advocate.
The evidence was summarized - for the government:

Two American Soldiers testified that on 9 March 1968 they were drinking some cokes in a store in Phu Long, Vietnam. The applicant entered and ordered a beer. He did not appear drunk. He consumed three beers while in the store. As the two soldiers got up to leave, the store operator pleaded with them to stay, because she was certain that the applicant was highly intoxicated. They stayed for awhile, then left.

The store operator testified that after they left, a South Vietnamese soldier entered the store and went to the counter to purchase a pastry. As she bent down behind the counter to get the item, she heard about five shots and saw the South Vietnamese soldier on the floor. She did not see the applicant shoot the soldier; however, her son stated that he saw the applicant knock the soldier to the floor. He then ran outside and heard the shots.

The two American Soldiers had been outside when they heard the shots, and saw the applicant run away. They ran back to the store and saw the soldier on the floor. They ran after the applicant and apprehended him.

For the defense: The applicant's unit returned from the field for a stand-down on 7 March 1968. On 8 March 1968 the applicant consumed 15 to 20 cans of beer, and on 9 March 1968, he and others drank a bottle of liquor, after which he was "pretty well gone." Later, he was seen again drinking. He was described as "stone drunk" at 1500 hours, just before the shooting.

The applicant testified that he was one of seven children and that he sent all his money home to his family. He reenlisted in order to come to Vietnam. In October 1967 his battery was overrun. He assisted in driving the Viet Cong from the battery and rendered aid to injured soldiers. He stated that when he returned to the rear areas for stand-downs he tried to get drunk. On 8 March 1968 he spent the day drinking and continued again on the morning of 9 March 1968. The next thing that he remembered was being hit by a truck on the afternoon of 8 March 1968. He next remembered waking up in the Provost Marshal's office and being informed that he was charged with murder. The defense introduced a letter from the applicant's former commanding officer indicating that the applicant was an outstanding soldier and had been recommended for the Bronze Star Medal with "V" device, and that he would be glad to have applicant back in his command. The battalion surgeon testified that the applicant was an excellent soldier and that in spite of an injury that would have enabled him to stay in the rear area, the applicant voluntarily returned to the field with his unit. The applicant's battery commander testified that the applicant was a distinguished soldier. The defense introduced a letter from a South Vietnamese officer which stated that the applicant was drunk at the time, and that they did not think that he killed the soldier on purpose.
The Staff Judge Advocate concluded that the applicant's guilt was established beyond a reasonable doubt. He opined that there were no errors which materially prejudiced the substantial rights of the accused, that the findings of guilty were correct in law and in fact, and that the sentence was legally correct. He recommended that the sentence be approved. On 2 June 1968 the convening authority approved the sentence. The applicant was confined in the United States Disciplinary Barracks (USDB) at Fort Leavenworth, Kansas.

General Court-Martial Order Number 211, Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, Kansas, dated 3 March 1969, indicates that the applicant's sentence had been affirmed and would be duly executed.

On 21 March 1969 the applicant was discharged from the Army under conditions other than honorable, under the provisions of Army Regulation 635-200.

On 24 June 1971 the applicant was released from confinement on parole. The term of the parole was until 16 April 1976.

On 3 May 1972 the applicant's probation officer recommended to the parole officer at the USDB, Fort Leavenworth, that at least 3 years of his supervision under parole be commuted, stating that the applicant had been in good contact with his office and had presented very few problems.

In July 1972 the applicant's sentence to confinement in excess of 5 years was remitted.

On 16 April 1973 the applicant was released from parole.

Army Regulation 635-200 states in effect that an enlisted person will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed.

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. There is no error or injustice in the applicant's discharge. His bad conduct discharge was clearly warranted in view of the nature of his criminal act.

2. The Board empathizes with the applicant's condition. His remorse is understandable. Thirty-five years have gone by. Time, however, has not made his act less offending. The Board has carefully considered his contentions and the evidence, to include the fact that he was paroled after serving three years in confinement, that a good portion of his sentence was remitted, and that he was released from parole before the expected release date; all indications of his good conduct, both in confinement and while on parole. None of these factors, however, individually or in sum, warrant the relief requested.

3. The applicant has submitted neither probative evidence nor a convincing argument in support of his request.

4. 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 that requirement.

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

__SK ___ __RJW _ __MMB__ DENY APPLICATION

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

---

INDEX

CASE ID	AR2003090259
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20031106
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.00
2.
3.
4.
5.
6.