PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:  3 February 2000                             
	DOCKET NUMBER:   AR1999027895

	I certify that hereinafter is recorded the true and complete record of the proceedings 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:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Barbara J. Ellis 		Member	
	Mr. Ernest W. Lutz		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his bad conduct discharge (BCD) be upgraded to a fully honorable (HD) discharge. 

3.  The applicant states In effect, that his discharge was inequitable because after more than 80 months of honorable service, he only had one adverse action. He also states that no words can express how he feels about his actions, except that he has learned from his mistakes.  He submits his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of his request.

4.	The applicant’s military records show that he served honorably in the Regular 
Army (RA) from 6 February 1986-17 December 1991.  He was promoted to pay grade E-5 on 1 July 1991.  On 18 December 1991, he reenlisted in the RA for 
4 years and military occupational specialty (MOS) 91C (Practical Nurse).  He had no recorded record of indisciplines or lost time during his first enlistment.

5.  His awards consist of the Army Achievement Medal, the Good Conduct Medal, the National Defense Service Medal, the Noncommissioned Officer Professional Development Medal, the Army Service Ribbon, the Overseas Service Ribbon, and the Expert Field Badge.

6.  On 13 April 1993, while stationed at Fort Hood, Texas, the applicant was convicted by a general court-martial of distribution of two dosage units of lysergic acid diethylamide on or about 22 December 1992.  He was sentenced to reduction from pay grade E-5 to pay grade E-1, forfeiture of all pay and allowances, confinement at hard labor for 9 months and to be discharged with a BCD.  

7.  On 6 October 1994, the convening authority approved the sentence, and ordered the sentence executed subject to appellate review.  On 27 October 1993, the applicant received approval of indefinite involuntary excess leave pending the appellate review of his BCD.

8.  On 15 November 1993, 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.

9.  The appropriate authority ordered the BCD duly executed.  Accordingly, on 
10 November 1994, he was discharged, in absentia, after completing 5 years, 
10 months and 11 days on a prior enlistment and 2 years, 10 months and 
22 days on the enlistment under review.  He also had 210 days lost time due to being in confinement.

10.  Item 25 (Separation Authority) on the applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to him on 10 November 1994 is in error.  The separation authority is currently shown as AR 635-120, CHAP 10.  It should be shown as AR 635-200, CHAP 3, SEC IV.

11.  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.

12.  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.

13.  The Department of Veterans Affairs (DVA), in determining qualifications for benefits administered by that agency generally holds that an individual who accepts a discharge prior to completion of her complete term of obligated service may not be eligible for benefits unless or until the DVA or the Service Department determines that the early discharge amounted to a complete and unconditional separation from the service. 

CONCLUSIONS:

1.  The applicant’s BCD issued to him on 10 November 1994, was administratively correct and in conformance with the applicable regulations then in effect.

2.  The Board noted the applicant’s contention, however, trial by court-martial was warranted by the gravity of the offense charged and the discharge appropriately characterizes the misconduct for which he was convicted.

3.	The applicant’s BCD was accomplished in accordance with applicable Army 
Regulations with no indication of procedural errors which would have jeopardized his rights.

4.	Therefore, it would not be appropriate to change the applicant’s records to 
show he was honorably discharged from his second period of enlistment which is 
18 December 1991-10 November 1994.

5.	However, it appears that he should have been considered as having been 
issued a complete and unconditional separation for the honorable period of service from 6 February 1986-17 December 1991.  This period of service was fully satisfactory.  He had no indisciplinses and he served for more than 5 years on this enlistment.  He also achieved pay grade E-5 during his first enlistment.
6.	Such an action would provide a basis for the Department of Veteran Affairs to 
take favorable action on any requests from the applicant for veteran benefits based on this period of honorable service.  

7.  Additionally, the applicant’s record should be corrected to show that there is an error in item 25 (Separation Authority) on his DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to him on 10 November 1994.  An administrative correction is required to correct the separation authority currently shown as AR 635-120, CHAP 10.  It should be corrected to show AR 635-200, CHAP 3, SEC IV.

8.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.	That all of the Department of the Army records related to this case be 
corrected by showing:

a.	that the individual concerned was eligible for a complete and 
unconditional separation from the military at the time of his honorable discharge on 17 December 1991; and

b.	that his DD Form 214, issued on 10 November 1994, Item
25 (Separation Authority) be corrected to show AR 635-200, CHAP 3, SEC IV.

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

BOARD VOTE:  

MKP____  BJE_____  EWL____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Margaret K. Patterson
		        CHAIRPERSON

INDEX

CASE ID	AR199027895	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000203	
TYPE OF DISCHARGE	(BCD)	
DATE OF DISCHARGE	19941110	
DISCHARGE AUTHORITY	AR635-200, CH 3 	
DISCHARGE REASON	A68.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.6800	
2.		
3.		
4.		
5.		
6.