MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:

	BOARD DATE:            26 April 2000     
	DOCKET NUMBER:   AR1999025133

	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. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Stanley Kelley		Chairperson	
	Ms. Karol a. Kennedy		Member	
	Mr. Curtis L. Greenway		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:  In effect, reconsideration of his request for reinstatement of his E-7 pay grade and at the very least advancement on the retired list to pay grade E-7.

APPLICANT STATES:  In effect, that the Board’s original decision to deny his request was unfair and did not take into account the numerous accomplishment of his military career.  He continues to argue that his punishment was excessive and did not fit the crime and that he has, in effect, paid his dues associated with his court-martial conviction.  He notes that the Army’s decision to deny him retired pay in the grade of E-7 essentially is an extension of the court-martial sentence.  He contends that the original Board proceedings did not address the circumstances of his apprehension, nor fully consider his post service years.  The applicant states that he “was apprehended in what a German court said was a illegal entrapment of [apprehending official’s name] who was freed and no record of arrest.  I spent the night in a german holding cell booked in the morning for 4.8 gram of marijuana.  Released then picked up by C.I.D. interrogated, threatened, released walked across to next building and reported to duty 08:00 hours.”  

He states, in a letter to the President, that, in effect, his financial situation is limited, that he has excessive medical bills and would use any back pay and allowances to clear his credit card debt and assist his son’s business ventures.  In support of his request he submits his self-authored statement and what appears to be a narrative concerning specific events occurring early in his military career, prior to the court-martial conviction.

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 18 June 1997 (COPY ATTACHED).

The applicant was serving in the grade of E-7 in April 1982 when he pled guilty to two specifications of possession of marijuana.  His sentence included reduction to pay grade E-6 and forfeiture of $528.00 per month for 2 months.  He served an initial period of active duty between 1957 and 1959 and returned to active duty in November 1962.  He voluntarily retired in October 1983 with more than 26 years of creditable service for pay purposes.

In 1994 the Army Grade Determination Board unanimously denied the applicant’s petition to be advanced on the retired list to the grade of E-7.  In their deliberations they noted that the applicant had been convicted of possession of 4.48 grams, more or less, of marijuana and possession of 21.35 grams, more or less, of marijuana.

The Table of Maximum Punishment provides that conviction for possession of 30 grams or less of marijuana could result in a Dishonorable Discharge, 2 years confinement and total forfeiture.

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 concludes that the applicant’s contention that his punishment was excessive is without foundation.  He could have received a dishonorable discharge and be sentenced to 2 years confinement with total forfeiture of pay and allowance.  His reduction to pay grade E-6, which enabled him to continue his service until retirement was, in the Board’s opinion, lenient in view of his senior grade, age, and years of service at the time of his conviction.

2.  The Board also notes that the applicant pled guilty to the two specifications of possession of marijuana.  He has submitted no evidence that indicates the conviction was erroneous.  The Board also notes his conviction included one count of possession of 21.35 grams of marijuana, not merely the 4.8 grams he mentions in his request for reconsideration.

3.  Information concerning the applicant’s accomplishments prior to his court-martial conviction was available to the Board during its original deliberations and would also have been available to the Army Grade Determination Board.  The applicant has submitted no new evidence beyond that which was previously available to the Board.

4.  Notwithstanding the applicant’s previous good service, at the time of his conviction he had nearly 20 years of continuous active service.  He was clearly not a young soldier who may not have known any better.  He was serving in the grade of E-7, a senior NCO who would have been expected to uphold the highest standards of the military and to impart those standards on his subordinates and other junior soldiers.  The applicant’s conviction of possession of marijuana, in consonance with his plea, is not an indication that he served satisfactorily in the senior NCO grade that was entrusted to him.

5.  While the Board can sympathize with the applicant’s current financial situation the evidence indicates that he did not serve satisfactorily at the grade of E-7 and as such there is no basis to return him to that grade nor any basis to justify advancement on the retired list to that grade.

6.  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.

7.  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

____sk__  ___kak__  ___clg__  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AC1999025133	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000426	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	Deny	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.