MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:    

	BOARD DATE:            1 February 2001     
	DOCKET NUMBER:   AR2000047221

	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. Antoinett E. Farley		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful 		Chairperson	
	Mr. James E. Anderholm 		Member	
	Ms. Barbara J. Lutz 		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:  The applicant requests, in effect, that his bad conduct discharge (BCD) be upgraded to honorable. 

APPLICANT STATES:  That his military record will show that he had no prior disciplinary actions taken against him.  He was a model soldier who was proud to a member of the United States Armed Forces.  He further admits to “being in the wrong place at the wrong time” and therefore “entrapped” by his circumstances.  He relies on his service record in support of his application.  

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

On 17 September 1991, he enlisted in the Regular Army for a period of 2 years.  He completed his basic training at Fort Jackson, South Carolina.  He was then transferred to Fort Sam Houston, Texas, for advanced training in military occupational specialty (MOS) 91B10 (Medical Specialist).  Following completion of his military training on 30 January 1992, the applicant was assigned to Fort Carson, Colorado.

On 8 April 1993, the applicant was convicted by a general court-martial, contrary to his pleas, of violation of Article 81, of the Uniform Code of Military Justice, (UCMJ) for conspiring to wrongfully distribute marijuana, and violation of Article 112a, UCMJ, for wrongfully distribution of marijuana, both occurring on 30 September 1992.  He was also convicted of two specifications of violation of Article 92, UCMJ, for failure to obey a lawful order from a superior noncommissioned officer on 27 and 
28 February 1993.  His sentence included forfeiture of all pay and allowances, reduction to pay grade E-1, confinement at hard labor for 30 days and a BCD.  The applicant served his military confinement from 8 to 28 April 1993.  

On 5 May 1993, the applicant was placed on excess leave to await appellate review.

On 22 March 1994, the United States Court of Military Review affirmed the finding of guilty, approved the sentence and ordered the BCD to be duly executed.

On 4 August 1994, General Court-Martial Order Number 90 was published by the U.S. Army Field Artillery Center and Fort Sill, Oklahoma announcing that the sentence had been affirmed, and since the provisions of Article 71c having been complied with, and, that the part of the sentence pertaining to confinement having been served, directed that the BCD be duly executed.

On 9 September 1994, the applicant was discharged with a BCD under the provisions of chapter 3, Army Regulation 635-200, by reason of court -martial, other. 

He was credited with 2 years, 11 months and 2 days active service and 
20 days of lost time due to confinement.  He had 1 year, 4 months and 5 days of excess leave.  He was awarded the National Defense Service Medal and the Army Service Ribbon.

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 -martial 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, and advisory opinion(s), 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.  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 contention concerning entrapment and “being in the wrong place at the wrong time” are matters which should have been resolved during the trial and/ or appellate process.

5.  In view of the foregoing there is no basis for granting the applicant’s request

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

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

INDEX

CASE ID	AR2000047221	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010201	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	19940909	
DISCHARGE AUTHORITY	AR .635-200	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	Director	
ISSUES         1.	A105.00	
2.	A68.00	
3.	A01.35	
4.	A53.00	
5.		
6.