MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:.

	BOARD DATE:            29 March 2001                  
	DOCKET NUMBER:   AR2000049107

	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. Stephanie Thompkins		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Sloan  		Chairperson	
	Mr. Christopher J. Prosser		Member	
	Mr. Lester Echols 		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:  That his bad conduct discharge (BCD) be upgraded.

APPLICANT STATES:  In 1982, he was accused of possession and sale of Lysergic Acid Diethylamide (LSD) and marijuana.  He was advised that if he worked with the Criminal Investigation Division (CID) he would have the opportunity to have his charges suspended because the investigating agency was not interested in him, but the suppliers.  Once the investigation was over, he was confronted with a choice to remain enlisted with loss of pay up to a year or to take some type of less than honorable discharge.  Due to his youth, confusion and embarrassment he made the decision without understanding he could have stayed in the military and worked his way through this situation.  He submits a letter of support from his brother with his request.

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

He enlisted in the Army as a private, pay grade E-1 on 14 July 1980.

He was promoted to pay grade E-2 on 14 January 1981.

On 2 June 1981, he received nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for dereliction in the performance of duty.  His punishment included reduction to pay grade E-1, forfeiture and restriction.

He was reduced to E-1 effective 8 June 1981.

On 24 December 1981, he was reported AWOL.  He returned to duty on 29 December 1981.

On 8 January 1982, he received nonjudicial punishment under Article 15, UCMJ for absence from his unit.  His punishment included forfeiture of pay and extra duty.

On 1 February 1982, a special court-martial convened and charged the applicant with 3 specifications of wrongful possession of LSD and 3 specifications of wrongful possession of marijuana.  He pleaded guilty to the charges.

Specifications 1 and 2 of charge one and specifications 1 and 2 of charge two were dismissed after findings by the military judge upon motion by the government.  He was sentenced to confinement at hard labor for 4 months, forfeiture of pay and to be discharged with a bad conduct discharge.

On 22 February 1982, he was reported AWOL.  He surrendered to appropriate military authorities on 24 February 1982.

On 8 March 1982, he was reported AWOL.  He surrendered to appropriate military authorities on 9 March 1982.

On 10 May 1982, the applicant requested remission of his confinement.

On 14 May 1982, his sentence of confinement at hard labor for 4 months was suspended for a period of 9 months with provisions for automatic remission.

On 26 May 1982, he was granted excess leave pending appellate review of his discharge.

On 28 June 1982, his sentence to a bad conduct discharge was affirmed.

He was separated on 21 July 1982, under the provisions of Army Regulation 635-200, chapter 11, as a result of court-martial.  His total net service was 1 year, 11 months and 29 days.

The applicant’s records do not show he applied to the Army Discharge Review Board (ADRB) within 15 years from the date of his discharge.  Since his eligibility to apply to the ADRB had expired, his case was forwarded to the Army Board for Correction of Military Records for consideration.

Title 10, United States Codes, section 1552, as amended, precludes any action by this Board that would disturb the finality of a court-martial conviction.  It is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.

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 view of the circumstances in this case, the applicant has not convinced the Board he is entitled to an upgrade of his discharge.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The applicant’s contentions that his youth, confusion and embarrassment contributed to his electing not stay in the military has been noted by the Board; however, the character of the discharge is commensurate with the applicant's overall record of military service.

3.  While the Board is empathetic, the applicant’s submissions are not sufficiently mitigating to warrant an upgrade of his discharge.

4.  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.

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

________  ________  ________  DENY APPLICATION

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

INDEX

CASE ID	AR2000049107	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010329	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19820721	
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	A.07	
2.		
3.		
4.		
5.		
6.