MEMORANDUM OF CONSIDERATION

	IN THE CASE OF

	BOARD DATE:              12 August 1998               
	DOCKET NUMBER:      AC98-09086

	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.  The following members, a quorum, were present:

	Mr.	Fred N. Eichorn		Chairperson	
	Mr.	Raymond V. O’Connor Jr.		Member	
	Mr.	George D.Paxson		Member	

	Also present, without vote, were:

	Mr.	Loren G. Harrell		Director	
	Mr.	Joseph A. Adriance		Analyst	

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	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:  In effect, that his dishonorable discharge (DD) be upgraded to a general, under honorable conditions discharge (GD).

APPLICANT STATES:  In effect, that his partner in crime only received a bad conduct discharge (BCD) for the same offense with additional charges of assault and theft; and that he has lived a drug free life since his arrest and his record should be cleared.

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

On 4 March 1983 the applicant entered the Regular Army for 4 years at the age of 19.  He successfully completed basic training at Fort Jackson, South Carolina and advanced individual training (AIT) at Fort Gordon, Georgia.  Upon completion of AIT he was awarded military occupational specialty (MOS) 72E (Tele Communication Center Operator), and was assigned to overseas duty in Germany for his first permanent duty station.

The applicant’s record indicates that the highest rank he held on active duty was specialist/E-4.  The record documents no specific acts of valor, achievement, or service warranting special recognition.  

On 15 November 1985 the applicant was tried by general court-martial for violation of Article 112a of the UCMJ for wrongful possession of 101.48 grams of marijuana and 3.14 grams of cocaine with intent to distribute on 12 June 1985.  The applicant was found guilty and the resultant sentence from the military judge included a discharge from the Army with a DD; a forfeiture of all pay and allowances ; and to be confined for four years. 

The court-martial was promulgated in General Court-Martial Order (GCMO) Number 1, Department of the Army, Headquarters, 32 nd Army Air Defense Command, APO New York  09175, dated 13 January 1986.  A sentence modification was contained in the order which consisted of changing the confinement portion of the sentence to three years. 

On 26 April 1986 the United States Army Court of Military Review (ACMR) affirmed the applicant’s court-martial sentence.  The court-martial with modifications was finally affirmed in GCMO Number 415, Department of the Army, United States Army Disciplinary Barracks, U.S. Army Combined Arms Center and Fort Leavenworth, Fort Leavenworth, Kansas  66027, dated 
7 November 1986.  The order stated that Article 71 ( c ) having been complied with, the dishonorable discharge will be executed and the applicant was ordered to serve his confinement in United States Disciplinary Barracks at Fort Leavenworth, Kansas.

Accordingly, on 24 December 1986 the applicant was discharged with a DD after completing 2 years, 8 months, and 11 days of active military service, and accruing 405 days of time lost due to confinement.

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 noted the applicant’s desire to clear his record and commends him on living a drug free life since his arrest.  The Board also considered the applicant’s contentions that he was young and immature; that his crime partner received a less severe discharge for the same offense; and that his service was otherwise honorable.  However, the Board determined none of these factors, either individually or in sum, provide a basis for the clemency requested.

2.  Trial by court-martial was warranted based on the gravity of the offense with which the applicant was 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.

3.  Title 10, United States Code, section 1552, as amended does not permit any redress by this Board which would disturb the finality of a court-martial conviction.

4.  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

________  ________  ________  DENY APPLICATION

						Loren G. Harrell
						Director