MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            29 August 2000
	DOCKET NUMBER:   AR2000037420

	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	
	Ms. Antoinette Farley		Analyst	

  The following members, a quorum, were present:

	Mr. John D. Miller		Chairperson	
	Mr. Roger Able		Member	
	Mr. Charles Gainor		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, that his bad conduct discharge (BCD) be upgraded to an honorable discharge.

APPLICANT STATES:  In essence, correction of past mistakes to create a better future for himself.  The applicant provides a statement in his own behalf, a copy of his DD Form 214 (Report of Separation from Active Duty), and a copy of his discharge order in support of his application.

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

On 4 June 1974, he enlisted in the Regular Army for 4 years.  He completed his basic combat training at Fort Polk, Louisiana on 14 June 1974. He was then transferred to Fort Sill, Oklahoma for advanced individual training and was awarded military occupational specialty (MOS) 13B10 (Cannoneer) on 
20 September 1974. 

On 27 September 1974, he was transferred to Germany for duty in his MOS.  On 
23 December 1974, while in Germany, he received nonjudical punishment under Article 15, Uniform Code of Military Justice (UCMJ), for stealing property of a civilian valued at one hundred and fourteen (114) Deutsche Marks on 
7 December 1974 and for being absent without leave (AWOL) from his place of duty on 10 December 1974.  His punishment included forfeiture of $150.00 pay per month for 2 months, reduction to pay grade E-1 and 60 days restriction.  

On 14 March 1975, he was convicted by a special court-martial (SPCM) of breaking restriction.  His sentence included forfeiture of $229.00 pay and confinement at hard labor for 20 days.

On 22 September 1975, he was convicted by a SPCM of three violations of the UCMJ.  The first and second specifications were for violation of Article 92, UCMJ, for wrongfully and unlawfully possessing a controlled substance to wit 0.62 grams of amphetamines and for possessing the drug Mandrax on 17 August 1975.  The third specification was for wrongfully selling amphetamines on 
16 August 1975.  His approved sentence included reduction to pay grade E-1, confinement at hard labor for 4 months, payment of a $1200.00 fine to the United States Government and a BCD.  There was one previous conviction considered.  He was returned to the United States and served his confinement at the United States Disciplinary Barracks (USDB), Fort Leavenworth, Kansas. 

On 15 December 1975, he was restored to active duty pending completion of the appellate review of his case.  He was cleared for separation after receiving a physical and mental status evaluation.  He was placed on excess leave without pay, on the same date.

On 8 November 1976, SPCM order number 332, USDB, Fort Leavenworth, was issued to show that the sentence had been affirmed pursuant to Article 66 of the UCMJ, except that portion of the action pertaining to the fine which had been set aside in its entirety, and the provisions of Article 71-c having been complied with, the sentence, as thus modified, would be duly executed.

On 15 September 1977, the applicant was discharged with a BCD, under the provisions of Army Regulation 635-200, Chapter 11, by reason of conviction by court-martial, other.  He had completed 3 years and 5 days of active military service.  He had 97 days of lost time due to confinement and 641 days excess leave.

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.  The sentence may be modified by the Board based only upon a finding of clemency.

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.

3.  The applicant’s discharge was appropriate because the quality of his service was not consistent with the Army’s standards for acceptable conduct and performance of duty by military personnel.  The applicant has provided no independent corroborating evidence demonstrating that either the command’s action was erroneous or that his overall record of service mitigated his unacceptable conduct or duty.

4.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterized the misconduct for which the applicant was convicted.

5.  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

__jdm___  __ra____  __cg_____  DENY APPLICATION

Carl W. S. ChunDirector, Army Boards for Correctionof military Records

INDEX

CASE ID	AR2000037420	
SUFFIX		
RECON		
DATE BOARDED	20000929	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	19770915	
DISCHARGE AUTHORITY	AR 635-200 chapter 11	
DISCHARGE REASON	A	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.		
2.		
3.		
4.		
5.		
6.