MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            19 September 2000
	DOCKET NUMBER:   AR2000037838

	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. Hubert O. Fry Jr.		Chairperson	
	Mr. John P. Infante		Member	
	Ms. Regan K. Smith		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:  That his discharge was in error.  He states that “it wasn’t me that did it.”  He further alleges that he remembers there was another soldier stationed where he was with the same name.  He further states that he feels that he truly did not understand the words used at the Special Court-Martial (SPCM), nor did he have a chance to have an interpreter present during the trial.  In addition, he points out that he does not have any records or evidence due to an apartment fire, which caused him to lose all of his records.

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

That prior to the enlistment under review, he enlisted in the Regular Army for a period of 3 years on 28 May 1978.  He completed basic training at Fort Jackson, South Carolina and his advanced individual training in military occupational specialty (MOS) 76D10 (Material Supply Specialist) at Fort Lee, Virginia, on 
1 June 1978.  He was then transferred to Fort Benning, Georgia for airborne training.  On 12 December 1978, he was further assigned to duty in Germany where he served until 10 July 1979 and was honorably discharged.  He had served a total of 1 year 3 months and 11 days active duty.

On 11 July 1979, he reenlisted for 3 years with the rank of private first class, pay grade E-3, in MOS 76D10.  He continued to serve in Germany.

On 4 March 1981, he was disqualified for an award of the Good Conduct Medal due to a pending court-martial for possession and sale of hashish. 

On 13 April 1981, he was convicted by a SPCM of three specifications of violation of Article 92 of the Uniform Code of Military Justice (UCMJ), contrary to his pleas, for possessing, transferring and selling of 4.86 grams of marihuana, in the hashish form on or about 19 November 1980.  His approved sentence included forfeiture of $334.00 pay per month for 6 months, confinement at hard labor for 6 months, reduction to pay grade E-1 and a BCD.  On the same day, he was approved for transfer from Germany to the United States Army Disciplinary Barracks (USDB), Fort Leavenworth, Kansas, to complete his sentence. 

On 26 Aug 1981, SPCM Order 304, was issued by the USDB, Fort Leavenworth, which remitted the remaining portion of his confinement.  On the same date, he was restored to duty and placed on excess leave pending completion of his appellate review.

On 23 December 1981, the United States Army Court of Military Review affirmed his sentence.

On 10 May 1982, SPCM Order 254, was issued by the USDB, which announced that his approved sentence of 13 April 1981, having been affirmed under Article 66, UCMJ, and the provisions of Article 71c having been complied with, the sentence would be duly executed.  It was noted that he had served his period of confinement and that he was on excess leave.

On 7 July 1982, the applicant was discharged, with a BCD, under the provisions of chapter 11, Army Regulation 635-200, as a result of court-martial.  He had completed 2 years, 7 months and 14 days of active military service on the enlistment under review.  He had 165 days lost time due to confinement and spent 316 days on excess leave. 

There are no records to show that the applicant ever sought a discharge upgrade through the Army Discharge Review.  

The statutory authority under which this Board was created (Title 10, United States Code, Section 1552), precludes any action by this Board which would disturb the finality of a court-marital conviction.  The sentence may be modified by the Board based 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 this requirement.

2.  Trial by court-martial was warranted by the gravity of the serious offenses of possessing, transferring and selling drugs with which he was charged.

3.  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.

4.  The applicant’s contentions concerning the conduct of the trial, the fact that a soldier with the same name should have been tried and his inability to fully understand the proceedings are not within the purview of this Board, since it has no jurisdiction over the conduct of trials by court-martial.  He should have resolved these matters at the time of the trial with his defense counsel and the military judge.

5.  In the absence of any evidence of outstanding service, to include his prior period of service and the absence of any matters which warranted a finding of clemency, the Board declines to upgrade the discharge imposed by his court-martial.

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

__hof___  __jpi_____  __rks____  DENY APPLICATION

Carl W. S. Chun
Director, Army Board for Correction
of Military Records

INDEX

CASE ID	AR2000037838	
SUFFIX		
RECON		
DATE BOARDED	20000919	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	19920501	
DISCHARGE AUTHORITY	AR 635-200 CH 11	
DISCHARGE REASON	A71.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	67.90	
2.	68.00	
3.		
4.		
5.		
6.