MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           4 February 1999
	DOCKET NUMBER:   AC55-00350H
				   AR1998013587

	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. Loren G. Harrell		Director	
	Mr. Gerald E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Ms. JoAnn H. Langston 		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Van B. Cunningham		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:  Through his counsel, a reconsideration of his previous application to correct his records by;

a.  upgrading his general discharge; 

b.  purging his files of all references to his 1953-1954 general court-martial, military appeals actions and his dishonorable discharge or by  transferring said records to a restricted portion of his records;

c.  correcting his records to reflect honorable service from 5 February 1953 to 12 September 1955 or to reflect discharge on 2 March 1954;

d.  purging his records of derogatory information in reference to lost time; or,

e. in lieu of the above by granting him an uncharacterized entry level discharge for unsatisfactory conduct.

APPLICANT STATES:  That he defers to his counsel for contentions and arguments.

COUNSEL CONTENDS:  In effect, that the evidence used in the applicant’s court-martial was flawed and that his counsel was ineffective.  He contends that the punishment directed by court-martial was unduly harsh and that a continuation of his current general discharge with indications of the lost time in his records is inequitable.  Counsel avers that the applicant’s service excluding the drug charge was above average and that his post service conduct has continued to be above average warranting clemency.  He states that a combination of changes in civil criminal law (that decriminalized, in most states, possession of the amount of marijuana the applicant was charged with possessing), revisions in Uniform Code of Military Justice (UCMJ) (that the now distinguishes between possession for use and possession for sale), the use of urinalysis as a major factor in prosecution of drug cases, and current DOD administrative policies that have resulted in a significant enhancement of rights to current offenders that it is appropriate to apply these factors to the applicant’s case.  He avers that these changes in policy and procedures warrant a granting of relief and that under current standards the applicant would have been offered rehabilitation and retained.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 14 December 1955, the Board’s Proceeding of 30 June 1976 and the 5 April 1978 Memorandum of Consideration .

The applicant’s counsel submits an extensive brief which primarily reiterates the contentions that have been set forth in the applicant’s prior applications.  However, it appears that some of the documents, arguments and issues referenced in this brief may not have been fully addressed by the Board in one of its prior reviews.

The applicant’s original court-martial charges were for one count of wrongful sale of marijuana and two counts of possession of marijuana.  The drug sales charge was dismissed due to the applicant’s counsel effectively raising a question of the proper handling of evidence, a determination of flawed chain of custody.

The applicant’s court-martial sentence of 25 September 1953 consisted of a forfeiture of all pay and allowances, confinement at hard labor for five years, and to be dishonorably discharged.  The discharge authority approved the sentence except reduced the period of confinement to four years.  On 6 January 1954 the Court of Military Appeals approved the findings of guilty and the terms of the sentence save that they modified the period of confinement to three years.  The applicant was paroled and received a dishonorable discharge on 2 March 1954.  The confinement portion of his sentence expired 12 September 1955.

The applicant’s has submitted 22 items detailing his post service activities, awards and achievements.  These include news clipping; dated June 1988, August 1988,June 1989, August 1989, December 1989 and September 1991; excerpts from Barr’s Post Card News magazine, dated May 1994 and April 1996; three items related to his receipt of the Certificate of Special Congressional Recognition; an October 1995 certificate of completion of the Army Physical Security Course; a November 1995 Certificate of Appreciation for 10 years of service to the Selective Service System; three awards from the Toastmasters, dated 24 April 1994, 13 June 1994, 17 June 1994; two thank you letters for assistance from the Federal Employee Education and Assistance Fund for his efforts, dated 16 September 1993 and 24 October 1996; a June 1992 Presidential Sports Award; a Department of Treasury Patriotic Service Award; four letters related to his 1991 appointment to the U.S. Department of Housing and Urban Development Executive Emergency Relocation Team, and an unofficial copy of military courses completed post service.

The statutory authority under which this Board was created (Title 10, United States Code, section 1552, as amended) precludes any action by this Board which would disturb the finality of a court-martial conviction.

Army Regulation (AR) 635-200, chapter 3, sets forth the description of and requirements for characterization of discharges.  Section 3-7 (a) states, in effect, that an honorable discharge (HD) is appropriate when the quality of service has met the standards of acceptable conduct or behavior or is so meritorious that other characterization would clearly be inappropriate.  Conviction by a general court-martial does not automatically rule out an HD.  An HD may be furnished when disqualifying entries in the soldier’s military record are outweighed subsequent honest and faithful military service.  Section 3-7 (b) states that a general discharge is appropriate when the military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

AR 635-200, section 3-9 a, sets for the provisions for uncharacterized separations for entry level separations (ELS).  In effect, it states that an ELS is warranted if processing is initiated while the soldier is in an entry level status except when characterization of under other than honorable conditions (UOTHC) is warranted. 

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.  The Board commends the applicant on his post service efforts and achievements despite the significant impediment that his original dishonorable discharge, the derogatory information related to his discharge and period of time lost has caused him.

2.  However, trial by court-martial was warranted by the gravity of the offenses as charged in 1953.  The conviction and discharge were effected in accordance with applicable law and regulations in effect at that time, and the discharge appropriately characterized the applicant’s limited period of service when weighted against the seriousness of the offence.  The applicant was afforded full due process and appellant reviews as set forth by law at the time of his court-martial and administratively due to subsequent regulatory changes.  These reviews failed to elicit any finding of error or flaws in the court-martial warranting a change in the verdict, sentence or characterization of discharge above what has already been granted.

3.  The applicant was convicted of possession of illegal drugs which was a felony offence at the time of his court-martial.  The fact that civilian judicial systems have redefined the specifics for current cases does not affect the propriety of the 1953 actions.  The applicant was originally charged with drug trafficking which even under current standards warrants referral to court-martial as opposed to administrative discharge proceedings.  The fact that the applicant’s counsel was successful in having this charge dismissed does not invalidate the reason for the general court-martial.  The military has not decriminalized illegal drug possession and is still very avid in its prosecution of suspected drug traffickers.

4.  The applicant’s original sentence was reviewed by the convening authority with his confinement being reduced to four years.  A further reduction to three years confinement was afforded him by a review board of the United States Court of Military Appeals.  The fact that the applicant was granted a general discharge, in 1976, further documents that he has already been afforded review under changes to the military drug usage policy and procedures.  

5.  Retention and rehabilitation are options available to commanders but are not mandatory.  It is not the right of a soldier to be afforded retention but an opportunity for a commander who believes that the soldier is worth retaining to request that they be allowed to continue on active duty.  

6.  This Board does not have the authority to set aside the court-martial conviction.  Further, there are no provisions in law or regulation which allow for the conversion of the applicant’s lost time due to military confinement while awaiting court-martial or the time served as a result of a conviction by court-martial to be reflected as creditable service time.

7.  To say that had the applicant committed same offences at the current time that his case would have been handled differently and to presume that he would have been released either under the ELS provisions or under an administrative discharge are pure speculation.  Further, the charges of drug possession and sale would preclude an ELS as they warrant a consideration of an UOTHC.

8.  The applicant’s limited period of service, although described as above average, was not so meritorious as to offset the gravity of the offences for which he was court-martialed nor did he have any subsequent military service warrant an upgrade beyond his current general discharge.

9.  The applicant and his counsel have failed to show how his trial counsel was ineffective.  A review of the Record of Trial clearly shows that counsel was successful in getting the greater charge of drug trafficking dismissed.

10.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

11.  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

__JHL___  ___AAO_  ___VBC_  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC55-00350H/AR1998013587	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990204	
TYPE OF DISCHARGE	(DD)	
DATE OF DISCHARGE	19540302	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.02/189	
2.	105.02/396	
3.		
4.		
5.		
6.