MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            3 May 2000
	DOCKET NUMBER:   AR2000035893

	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. Carl W. S. Chun		Director	
	Mr. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. John H. Kern		Member	
	Mr. Ernest W. Lutz, Jr.		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 more favorable discharge.

APPLICANT STATES:  In effect, that he was treated unfairly and that his overall service, rank, and the injury that led to his dependency were not fairly considered as mitigating evidence in determining the sentence he was to receive.  He further states that he served for 15 years and 14 of those years consisted of outstanding service as evidenced by his attaining the rank of staff sergeant, being responsible for a 28 man platoon and millions of dollars of equipment, completion of military schools and many awards and honors.  He goes on to state that he was injured in 1986 and while he was hospitalized he became dependent on the pain medications.  Upon discharge from the hospital, the pain medications were discontinued; however, the physical pain continued and he resorted to street drugs to cope with the physical and emotional pain.  He also states that he received a BCD because of nine insufficient funds checks in a short amount of time and because of a positive drug screen for cocaine; however, the bad checks occurred while he was stationed in Alaska, Panama, and Germany while his wife remained stateside and they were both writing checks from the same account.  While he is not excusing his use of cocaine, it was the result of becoming addicted to pain medication while hospitalized with a service-related injury.  He has attempted to correct his lifestyle and has entered treatment for his addiction and is presently being treated by the VA.  Therefore, one mistake over a 14-year period should not warrant a BCD. 

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

He enlisted in Kansas City, Missouri on 14 February 1975 for a period of 4 years, assignment to the 82d Airborne Division, and a cash enlistment bonus.  He completed his training and was transferred to Fort Bragg, North Carolina for duty as an infantryman and was promoted to the pay grade of E-6 on 19 November 1981.

His records show that he served overseas in Germany with his family from 11 December 1982 to 26 December 1985 when he was transferred to Fort Benjamin Harrison, Indiana to attend the Army Recruiter Course.  He was administratively eliminated from the course for failure to meet weight control standards and was transferred to Fort Campbell, Kentucky.  He completed the Air Assault Course in May 1986.

In July 1986 he underwent surgery for a ruptured disc and was prescribed Tylenol 3 for pain.  The surgery was considered non-eventful and a successful operation.

He remained at Fort Campbell until he was transferred to Fort Hood, Texas in April 1987.  At the time he inprocessed at Fort Hood he was 69 inches tall and weighed 241 pounds.  His records also show that he continued to complain about chronic back pain and requested that physical profiles be issued.  He was referred to the Orthopedic clinic and physical therapy was prescribed.

On 8 February 1988 he completed the Combat Arms Advanced NCO Course (ANCOC) at Fort Benning, Georgia and the academic evaluation report he received indicates that his personal and financial problems affected his performance during the course and needed to be handled immediately.
 
On 30 December 1988 he was convicted by a general court-martial of failure to obey a lawful order issued by a superior commissioned officer to remain within the limits of Fort Hood, making a false official statement, with intent to deceive, to a special agent of the Criminal Investigation Command on 13 September 1988, the wrongful use of cocaine on 28 September 1988, and nine specifications of uttering bad checks in the amount of $935.00 during the period of 31 May to 4 September 1988.  He pled guilty to all charges and was sentenced to confinement at hard labor for 25 months, reduction to the pay grade of E-1, forfeiture of all pay and allowances, and a BCD.  The convening authority approved the findings and sentence of the general court-martial on 24 February 1989.

The Court of Military Review affirmed the findings and sentence of the general court-martial and the applicant was discharged at Fort Leavenworth, Kansas on 20 October 1989 pursuant to the general court-martial sentence.  He had served 13 years, 10 months and 16 days of total active service and had 295 days       (9+ months) of lost time due to imprisonment. 

The Manual for Courts-Martial provides the maximum sentences authorized for violations of individual articles of the Uniformed Code of Military Justice.  It provides, in effect, that the maximum cumulative punishment allowed for the offenses for which the applicant was charged could not have exceeded a Dishonorable Discharge, confinement at hard labor for 16.5 years, total forfeiture of pay and allowances, and reduction to the lowest enlisted grade.

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.  The applicant was properly discharged pursuant to a sentence by a general court-martial with no indication of any violations of any of the applicant’s rights.
3.  The applicant’s contentions have been noted by the Board and the Board finds that they are not supported by the evidence of record or the evidence submitted by the applicant with his application.  

4.  The available evidence suggests that he wrote the bad checks for which he was charged while he was at Fort Hood, and not in Germany, Alaska, or Panama as he suggests.  While there are indications that he may have had a history of financial problems prior to the charges being imposed against him, it does not appear that his prior problems served as the basis for his discharge.

5.  The evidence of record also suggests that the applicant was receiving treatment for his chronic back pain and that it was his choice, albeit a bad choice, to seek alternative methods other than those prescribed or approved by a trained physician.   

6.  In regards to his contention that his rank and service were not considered during sentencing, the Board finds that under the circumstances, leniency is less acceptable when it involves a senior NCO who knows better and is supposed to set the example for his soldiers.  While the Board cannot determine what was considered by the general court-martial convening authority at the time of sentencing, given the seriousness of his offenses and the conduct expected of a senior leader, his punishment appears to be appropriate when compared to the maximum sentence he could have received.  It is also noted that he had the benefit of the appellate process and the sentence was upheld during the appellate review.

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

___ewl __  __rvo___  __jhk____  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR2000035893	
SUFFIX		
RECON		
DATE BOARDED	2000/05/03	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	1989/10/20	
DISCHARGE AUTHORITY	gcm	
DISCHARGE REASON	gcm	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  675	144.6800/BCD	
2.		
3.		
4.		
5.		
6.