MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:            6 April 2000
	DOCKET NUMBER:   AR1999028520

	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. John N. Slone		Chairperson	
	Mr. Ernest M. Willcher		Member	
	Mr. James E. Anderholm		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:  In effect, that within the past 15 years he has been a good citizen, he has maintained a job and he has been in no trouble.  He submits a letter for the Board to consider that was written in his own behalf, and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).  Further, in the letter he states that he was young and he associated with the wrong crowd when he was in the military.  Since that time he has changed, he has a family, he is older, wiser and more responsible.

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

On 9 September 1980, at age 24, the applicant enlisted in the Regular Army for a period of 3 years and military occupational specialty (MOS) 11B (Infantryman). 

On 14 October 1982, while stationed in Germany, the applicant was convicted by a special court-martial for four specifications of possession and sale of marijuana.  He was sentenced to reduction from pay grade E-3 to pay grade E-1, forfeiture of $367 pay per month for 3 months, confinement at hard labor for 
3 months and to be discharged with a BCD.  

On 27 October 1982, he departed Germany enroute to the US Army Installation Detention Facility, Fort, Ord California.

On, 29 December 1982, the convening authority approved the sentence, and ordered the sentence executed subject to appellate review.  On the very same day he was placed on excess leave from the US Army Installation Detention Facility, Fort, Ord California.

On 27 April 1993, the United States Army Court of Military Review found that in two separate specifications the applicant was charged with “possessing ‘22.87 grams, more or less’ and ‘an indeterminate amount’ of marijuana” at precisely the same date and place, thus this was but one single possession.  Further, the court determined that nothing would be gained by aggregating the two specifications and that the error would be corrected by dismissing the lesser specification.  Additionally, the Court was satisfied that the applicant was not prejudiced by the error in the sentencing stage as the military judge announced that he considered the two offenses “multiplicious” for punishment purposes. 

The finding of guilty of one specification of the charge was set aside and the specification was dismissed.  The remaining findings of guilty and the sentence were affirmed.
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 5 December 1993, the appropriate authority ordered the BCD duly executed. Accordingly, on 5 January 1984, he was discharged, in absentia, under the provision chapter 3, Army Regulation 635-200 by reason of court-martial.  He had completed 3 years, and 25 days of active military service.  He also had 
92 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 applicant’s 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.  The Board has taken into consideration the applicant’s contention that he was young; however, the applicant met entrance qualification standards to include age.  The Board found no evidence that the he was any less mature than other soldiers of the same age who successfully completed their military service obligation.
5.  The Board congratulates the applicant on his achievements since departing the Army.  However, the Board does not grant relief based solely on post service conduct.

6.  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

__jns___  __sk_____  __jea____  DENY APPLICATION

   Karl Schneider
        Director, Army Review Boards Agency

INDEX

CASE ID	AR1999028520	
SUFFIX		
RECON		
DATE BOARDED	20000406	
TYPE OF DISCHARGE	(BCD)	
DATE OF DISCHARGE	19840105	
DISCHARGE AUTHORITY	AR635-200, Chapter 3	
DISCHARGE REASON	As a result of court-martial, other	
BOARD DECISION	(DENY	
REVIEW AUTHORITY		
ISSUES         1.	A68.00	
2.		
3.		
4.		
5.		
6.