MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:            26 October 2000
	DOCKET NUMBER:   AR20000381319

	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:

	Ms. Melinda M. Darby		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. William D. Powers		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, he asks the Board to rely on a review of his military records for an upgrade of his discharge.  He submits a copy of his undated supplemental appeal to the United States Court of Military Appeals.

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

That prior to the enlistment under review, he served in the Regular Army from 
30 July 1975 to 25 December 1985.  He was training in military occupational specialty (MOS) 71B10 (Administrative Specialist).  He served in Germany from 17 April 1978 to 18 January 1981 and from 19 January 1981 to 9 December 1984.  He also began a tour of duty in Korea on 10 December 1984.  The highest rank he attained was sergeant, pay grade E-5.

On 26 December 1985, the applicant reenlisted in the Regular Army for 4 years, in pay grade E-5 to remain in Korea. 

On 25 April 1988, while still stationed in Korea, the applicant was convicted by a special court-martial (SPCM) of violation of Article 112a, Uniform Code of Military Justice, for wrongful use of cocaine from 22 to 24 November 1987.  He was sentenced to be reduced to private E1 and to be discharged with a BCD.  On 
7 July 1988, the applicant was placed on excess leave pending appellate review. 

On 29 March 1989, the U. S. Army Court of Military Review affirmed the findings and sentence of the SPCM.

On 22 May 1989, the applicant submitted a supplement petition to the United States Court of Military Appeals for review of his SPCM conviction.  On 25 August 1989, that Court denied his petition.

On 2 October 1989, SPCM Order Number 153, was issued by Headquarters, US Army Armor Center and Fort Knox, Kentucky announcing that the sentence had been finally affirmed, and Article 71 (c), UCMJ, having been complied with, the BCD was ordered executed.

On 13 November 1989, the applicant was discharged with a BCD under the provisions of chapter 3, Army Regulation 635-200, by reason of court -martial, 
other.  He had completed 3 years and 17 days active military service for this period of enlistment and had 496 days of excess leave.  He had 8 years, 
6 months and 10 days prior active service.

The applicant’s DD Form 214, Item 13 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) completed at the time of separation, shows: the award of the Army Commendation Medal; the Good Conduct Medal 4th award; the Army Achievement Medal; the Army Service Ribbon; the NCO Professional Development Ribbon (basic level); the Overseas Service Ribbon, with numeral 3; the Marksmanship Qualification Badge (M-16); and the Drivers Badge, 2nd award.

The applicant also received two Army Discharge Review Board (ADRB) reviews.  The first was on 15 October 1990 and the second was a personal appearance on 25 November 1991.  Each board denied the applicant’s requests for an upgrade and a change in the reason for his discharge.

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 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 this requirement.

2.  Trial by court-martial was warranted by the gravity of the offenses 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, by violating the Army’s policy not to possess or use illegal drugs, compromised the special trust and confidence placed in a non-commissioned officer (NCO).  The applicant, as a NCO, had the duty to support and abide by the Army’s drug policies.  By abusing illegal drugs, the applicant knowingly risked a military career.

5.  The Board noted the applicant’s prior military service and he is to be commended.  However, these accomplishments do not provide the Board a basis upon which to grant clemency.

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

__mmd__  __aao___  __wdp___  DENY APPLICATION

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

INDEX

CASE ID	AR2000038319	
SUFFIX		
RECON		
DATE BOARDED	20001026	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	19891113	
DISCHARGE AUTHORITY	AR 635-200 CH3	
DISCHARGE REASON	A68.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	A85.03	
2.	A66.00	
3.	A39.00	
4.		
5.		
6.