PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           16 March 2000                   
	DOCKET NUMBER:   AR2000036664

	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.  

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Orville W. Troesch, Jr.		Member	
	Mr. Christopher J. Prosser		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 be upgraded to a general discharge under honorable conditions.

3.  The applicant states that he knows he made a mistake but because of a series of personal tragedies he turned to drugs for help.  Even before going to trial he sought help and received treatment.  He has been drug free ever since.  Celebrities who make the same mistake never suffer the consequences he did.  He is not saying this justifies what he did but it is not fair that he has to compete in the job market where this mistake is causing him problems.  The VA has recently notified him that he cannot be compensated for injuries he received while on active duty.  He had nearly 13 years of good service and three honorable discharges.  He just wants a chance.

4.  The applicant’s military records show that he enlisted in the Regular Army on 7 October 1985 and had continuous service until his discharge.  He was promoted to Sergeant, E-5 on 1 October 1994.  His last honorable discharge was on 8 March 1995 and he immediately reenlisted on 9 March 1995.  He had no record of disciplinary actions until the incidents that led to his court-martial.

5.  On 9 April 1998, the applicant was convicted by a general court-martial of two specifications of wrongfully using cocaine, wrongfully possessing “crack” cocaine on divers occasions, and wrongfully distributing cocaine.  His approved sentence was to be reduced to private, E-1, to forfeit all pay and allowances, to be confined for 12 months, and to be discharged with a bad conduct discharge.

6.  On 12 June 1998, the U. S. Army Court of Criminal Appeals considered the applicant’s entire record, including consideration of the issues personally specified by him, and affirmed the findings of guilty and the sentence as approved.

7.  On 4 November 1998, the applicant was discharged, with a bad conduct discharge, pursuant to his court-martial sentence.  He had completed 12 years,  5 months and 29 days of creditable active Federal service and had 209 days of lost time.

8. Title 10, U.S. Code, section 1552, as amended, precludes any action by this Board which would disturb the finality of a court-martial conviction.

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

CONCLUSIONS:

1.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

2.  Although the Board takes cognizance of the applicant’s prior good service, this factor does not warrant the relief requested and it would not be appropriate to change the records to show that he was discharged with a general discharge under honorable conditions from the reenlistment commencing on 9 March 1995. However, it appears that his honorable discharge of 8 March 1995 should be considered as having been issued as a complete and unconditional separation.

3.  The circumstances of the applicant’s honorable discharge on 8 March 1995 have worked an injustice upon him by depriving him of consideration for certain VA benefits for the preceding periods of service.

4.  In view of the foregoing, it would be in the interest of justice to correct the applicant’s records as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the applicant was eligible for a complete and unconditional separation from the military service at the time of his honorable discharge on 8 March 1995.

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

BOARD VOTE:  

__jlp___  __owt___  __cjp___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Jennifer L. Prater
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000036664	
SUFFIX		
RECON		
DATE BOARDED	20000316	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	105.01	
2.		
3.		
4.		
5.		
6.