MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  13 January 2000                            
	DOCKET NUMBER:   AR1999018165

	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.

	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Ernest M. Willcher		Chairperson	
	Mr. Ernest W. Lutz		Member	
	Ms. Margaret V. Thompson		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 (BCD) be upgraded to a fully honorable (HD) discharge. 

APPLICANT STATES:  That he had 5 years of honorable service.  He also states that he believes he was discharged as a result of racial discrimination.

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

He served honorably in the Regular Army from 4 November 1974-19 June 
1977 in military occupational specialty (MOS) 12C (Bridge Specialist).  On
20 June 1977, he reenlisted for a period of 6 years and his previous MOS.  In December 1980, he was assigned to the Republic of Germany.  

In July 1981, the applicant received nonjudicial punishment under the provisions of the Uniform Code of Military Justice (UCMJ) for being disorderly in a public place.  His punishment included reduction from pay grade E-5 to pay grade 
E-4 (suspended), and 21 days extra duty.  

On 19 July 1982, while stationed at Hanau, Germany, the applicant was convicted by a special court-martial for wrongfully having in his possession 
3.35 grams, more or less of marihuana in the hashish form; for wrongfully transferring marihuana; and for wrongfully selling marihuana on 5 June 1982.  He was sentenced to reduction from pay grade E-5 to pay grade E-1, forfeiture of pay, confinement at hard labor for 4 months and to be discharged with a BCD. He was imprisoned on 21 July 1982.  

On 18 October 1982, the convening authority approved the sentence, and ordered the sentence executed subject to appellate review.  On 28 October 1982, the applicant was released from confinement.  On 29 October 1982, he was placed on excess leave pending the appellate review of his BCD.  

On 18 August 1983, the US Army Court of Military Review affirmed the findings and approved the sentence.  There is no evidence in the available record that the applicant ever petitioned the US Court of Military Appeals for a review of his case.

On 30 November 1983, the appropriate authority ordered the BCD duly executed.  Accordingly, on 14 December 1983, he was discharged, in absentia, after completing 2 years, 7 months and 16 days on a prior enlistment and 
6 years, 2 months and 15 days on the enlistment under review.  He also had 
100 days lost time due to being in confinement.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, paragraph 3-11, provides that a soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

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.

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 and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

3.	The applicants BCD was accomplished in accordance with applicable Army 
Regulations with no indication of discrimination, prejudice or procedural errors which would have jeopardized his rights.

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

EMW____  EWL____  MVT____  DENY APPLICATION

Karl Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999018165	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000113	
TYPE OF DISCHARGE	(BCD)	
DATE OF DISCHARGE	19831214	
DISCHARGE AUTHORITY	AR635-200, Chapter 3	
DISCHARGE REASON	A68.00	
BOARD DECISION	(DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.6800	
2.		
3.		
4.		
5.		
6.