MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:           30 September 1998                                      
	DOCKET NUMBER:   AC98-09853

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright 		Chairperson	
	Mr. Raymond V. O’Connor, Jr. 		Member	
	Mr. James M. Alward 		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 honorable.

APPLICANT STATES:  That he had contacted the Fort Campbell, KY office of the Criminal Investigation Command to volunteer his services as an undercover operative for the Drug Suppression Team.  He received the impression that he was accepted as a confidential source and had a green light to start making contacts and lining up sources and dealers.  That is how it came about that he delivered a small amount of marijuana to a soldier.  His lawyers told him what he did is called a mistake of fact and that it is a recognized legal defense.  The judge, however, would not tell the jury about the mistake of fact defense and he was convicted.  None of the issues raised in his brief to the Court of Criminal Appeals were explained or answered when the findings were affirmed.  Review of his case by the U. S. Court of Appeals for the Armed Forces was denied and his petition for writ to the U. S. Supreme Court was denied.  He provides numerous character reference letters.

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

He initially enlisted in the Army National Guard in June 1989.  On 29 January 1991, he enlisted in the Regular Army.  

The applicant had no record of prior disciplinary actions.

On 10 March 1994, he was convicted by a general court-martial of two specifications of wrongful distribution of marijuana.  He was sentenced to be reduced to pay grade E-1, to forfeit all pay and allowances, to confinement for  12 months and to a bad conduct discharge.

His attorneys appealed the judgment, contending issues such as unlawful command influence, improper admission of oral admission into evidence (coercive environment, involuntary statement, lack of corroboration), legal error in refusal to give jury instruction, and uncharged misconduct. 

On 30 November 1995, the U. S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence.

The applicant requested restoration to duty but his request was denied.

The applicant was placed on involuntary excess leave on 19 December 1994.

On 12 September 1996, the applicant was discharged with a bad conduct discharge, pursuant to his court-martial sentence.  He had completed 4 years,  10 months and 5 days of creditable active service and had 284 days of lost time (confinement).

Title 10, U. S. Code, section 1552, as amended, precludes any action by this Board which wold disturb the finality of a court-martial conviction.

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 the aforementioned requirement.

2.  Trial by court-martial was warranted by the gravity of the offenses 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.  The applicant’s contentions relate to evidentiary and procedural matters which were finally and conclusively adjudicated in the court-martial appellate process and furnish no basis for recharacterization of the discharge.

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