MEMORANDUM OF CONSIDERATION

	IN THE CASE OF

	BOARD DATE:            31 October 2000
	DOCKET NUMBER:   AR2000040619

	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			
	Ms. Antoinette Farley		Analyst	

  The following members, a quorum, were present:

	Mr. Elzey J. Arledge Jr.		Chairperson	
	Mr. Allen L. Raub		Member	
	Ms. Brenda F. Hirschi		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 relies on his military records.  He submits no documents in support of his request.

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

He enlisted in the Regular Army for a period of 3 years on 19 August 1987.  He completed basic training at Fort Jackson, South Carolina and was transferred to the US Army Element School of Music, Little Creek, Norfolk, Virginia for advanced training.  On 2 December 1987, he was awarded military occupational specialty (MOS) 02E10, Trombone Player and remained at Little Creek for duty.  

On 5 September 1988, he was listed as absent without leave (AWOL)  He was apprehended by civilian authorities and returned to military control at Fort Eustis, Virginia on 9 September 1988.  

On 7 October 1988, he was issued a letter of reprimand (LOR), by a major, the Acting Commander, Headquarters Company, 756th Transportation Battalion, 
8th Transportation Brigade, Fort Eustis.  This letter cited his period of being AWOL in September and a positive urinalysis for use of marijuana.  On the same day, the applicant acknowledged receipt of the LOR, and elected to make statement in his own behalf.  The applicant’s statement is not a matter of record.  It was further directed that the LOR be filed in his local Military Personnel Records Jacket.

On 8 November 1988, the applicant was convicted by a general court-martial (GCM) of five specifications of use of marijuana; of use of cocaine; of possession of 
5.03 grams of marijuana; of the distribution of 1.125 grams of cocaine; and of conspiracy with another soldier to distribute drugs, all incidents occurring on 15 April 1988.  His sentence included forfeiture of all pay and allowances, reduction to pay grade E-1, confinement at hard labor for 4 years and a dishonorable discharge (DD).

Based on a pre-trial agreement, the court-martial convening authority changed the sentence to 18 months confinement, total forfeitures of pay and allowance for 
18 months and a BCD.

On 24 January 1989, the applicant was reassigned to the US Army Correctional Activity, Fort Riley, Kansas, to complete his sentence.

On 24 August 1989, the Army Clemency and Parole Board approved parole for the applicant and directed that he be released from confinement and placed in a parole status effective 21 September 1989.  

On the same day, the United States Court of Military Review affirmed the finding of guilty for the five offenses and the approved sentence.  

On 21 September 1989, the applicant was released from confinement at Fort Riley and was placed on parole.  On 8 May 1990, he successfully completed his parole and was placed on excess leave.

On 29 May 1990, General Court Martial Order Number 110, was issued by the United States Disciplinary Barracks, US Army Combined Arms Center and Fort Leavenworth, Kansas announcing that the sentence having been affirmed, and the provisions of Article 71(c) having been complied with, ordered the BCD to be duly executed.

On 15 June 1990, the applicant was discharged, with a BCD under the provisions of Army Regulation 635-200, Chapter 3, by reason of conviction by court-martial – other, with a BCD.  He had completed 1 year, 3 months and 22 days of active military service.  He also had 541 days of lost time due to confinement and 39 days excess leave.  The highest pay grade he attained was E-3.

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 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 has provided no independent corroborating evidence demonstrating that either the command’s action was erroneous or that his service mitigated his unacceptable conduct.

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

__eja____  __alr___  __bfh ____  DENY APPLICATION

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

INDEX

CASE ID	AR2000040619	
SUFFIX		
RECON		
DATE BOARDED	001031	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	19900615	
DISCHARGE AUTHORITY	AR 635-200 CH3	
DISCHARGE REASON	A68.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	A123.01	
2.	A110.02 	
3.		
4.		
5.		
6.