1.  The applicant requests that he be granted a military retirement and allowed receipt of his retirement pension.  He states, in effect, that the Army Discharge Review Board (ADRB) upgraded his bad conduct discharge to a general under honorable conditions (because it was inequitable, one incident in an otherwise unblemished 19-year career).  The VA had also determined that his discharge would be considered Honorable for Veterans Affairs purposes (HVA), due to its being based on a single incident of drug use and there being some doubt as to whether or not he knew his cigarette was tainted.

2.  The applicant’s military records show he enlisted in the Regular Army on        30 December 1974 and had continuous service until his discharge.

3.  The applicant has one Article 15 from 1977 and one letter of reprimand from 1991, for driving while under the influence, on file and one record of being absent without leave (AWOL) from 18 to 19 May 1993.  No other record of disciplinary action is in his records.

4.  On 22 June 1993, the applicant was convicted by a special-court martial of one specification of wrongful use of cocaine.  He was sentenced to be reduced to pay grade E-1 and to be discharged with a bad conduct discharge.

5.  On 2 December 1994, the U.S. Army Court of Criminal Appeals affirmed the findings and sentence.

6.  On 29 March 1995, the U.S. Court of Appeals for the Armed Forces denied the applicant’s petition for a grant of review.  This action finalized his case within the meaning of Article 76, Uniform Code of Military Justice (subject to no further appellate review).

7.  On 21 April 1995, the applicant was discharged, pursuant to his court-martial sentence, with a bad conduct discharge in pay grade E-1.  He had completed   18 years, 4 months and 19 days creditable active service.  His DD Form 214 shows he had lost time from 18 May 1993 to 21 April 1995.  His DA Form 2-1, Personnel Qualification Record, is incomplete so it is not known if some of this time was pre-trial confinement.  Apparently, the time from 22 June 1993 to        21 April 1995 was involuntary excess leave.

8.  Army Regulation 635-200, Chapter 12, provides that a soldier who has completed 20 years active federal service and who has completed all required service obligations is eligible to retire.

9.  On 26 November 1997, the ADRB upgraded the applicant’s discharge to a general under honorable conditions as a matter of equity.

10.  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.

CONCLUSIONS:  

1.  Trial by court-martial was warranted by the gravity of the offense charged.  The applicant’s contentions relate to evidentiary and procedural matters which were finally and conclusively adjudicated in the court-martial appellate process.  

2.  The applicant has less than 20 years of active federal service and so does not qualify for length of service retirement.

3.  The ADRB upgraded the applicant’s discharge as a matter of equity.

4.  The VA, in accordance with its own policies and regulations, may consider your discharge Honorable for Veterans Affairs purposes.  This determination has been considered by this Board, but it does not warrant the relief requested.

5.  This Board does note that a number of awards and decorations were erroneously left off the applicant’s DD Form 214.

6.  In view of the foregoing, it would be proper to correct the applicant’s records as recommended below.

RECOMMENDATION:  

1.  That all of the Department of the Army records related to this case be corrected by showing the applicant was awarded the Army Commendation Medal, the Combat Medical Badge, the National Defense Service Medal, the Southwest Asia Service Medal with 3 bronze service stars, the Kuwait Liberation Medal (Saudi Arabia) and the Kuwait Liberation Medal (Kuwait).

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

                       GRANT

                       GRANT FORMAL HEARING

                       DENY APPLICATION

                             		                                                               
					 	CHAIRPERSON