MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            7 August 2001
	DOCKET NUMBER:   AR2000050017

	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 E. Farley		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Thomas B. Redfern, III		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 essence, that his bad conduct discharge (BCD) be upgraded to an honorable discharge. 

APPLICANT STATES:  In essence, that he was very young at the time of his enlistment and feels clemency is warranted in his case, because he continues to suffer the adverse consequences of a BCD.  He points out that after his military training he was assigned to Germany for duty.  He further indicates while there he became aware of the world of drugs and alcohol.  He points out that at that time, he felt he had to participate in this world, in order to be a part of the crowd.  He states, that he was never afforded the opportunity to participate in alcohol or drug rehabilitation programs while in the military.  He further states, that his conduct was average, his efficiency ratings/behavior and proficiency marks were good and his record of promotion showed he was generally a good service member.  He therefore, feels that if he had achieved a higher level of education, things would have been different in his life.  He states, that it has been over 20 years since he was discharged and apologizes for the bad choices he made while in the service.  He now feels that the punishment he received over 20 years ago was too severe compared with today’s standards.  Therefore, he states that if his request is granted it would allow him the opportunity to hold his head high again.  In support of his claim he provides a detailed letter of explanation for his behavior during his military service.

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

On 20 January 1976, he enlisted in the Regular Army for a period of 3 years.  Following completion of basic training at Fort Ord, California, he was sent to Fort Lee, Virginia, for advanced training in military occupational specialty (MOS) 
94B10 (Food Service Specialist) effective 19 March 1976.  Upon completion of his training he was assigned to Germany for duty on 10 June 1976. 

On 8 July 1977, the applicant was convicted, in conformance with his guilty plea, of 
one specification of violation of Article 134, UCMJ, for wrongfully and unlawfully having in his possession 0.81 grams, more or less of a habit forming narcotic drug, to wit: heroin on 8 May 1977.  His approved sentence included reduction to pay grade E-1, forfeiture of all pay and allowances, confinement at hard labor for 5 months, and a BCD.  (No previous convictions considered).  He was then transferred to Fort Leavenworth, Kansas, to complete the remainder of his confinement.

On 4 November 1977, he received a separation physical and was found medically qualified for separation.  

On 9 November 1977, General Court-Martial Order Number 1112 was issued by the United States Disciplinary Barracks at Fort Leavenworth, Kansas which announced, effective 7 November 1977, that the unexecuted portion of the applicant’s sentence to forfeitures of all pay and allowances, was remitted.  On the same date, having served the period of adjudged confinement, he was restored to duty and then placed on excess leave to await appellate review. 

On 21 February 1978, the United States Court of Military Review affirmed the findings of guilty and the sentence.

On 22 January 1979, the appropriate authority noted that the sentence having been affirmed and Article 71(c) having been complied with, ordered the BCD to be duly executed.

On 4 June 1979, the applicant was discharged, with a BCD, under the provisions of paragraph 11-2, Army Regulation 635-200, by reason of conviction by court-martial. He was credited with 3 years and 12 months of active service and he had 123 days lost time due to confinement.

Court-martial convictions stand as adjudged or modified by appeal through the judiciary process.  In accordance with Title 10, United States Code, Section 
1552, the authority under which this Board acts, the ABCMR is not empowered to change a discharge due to matters which should have been raised in the appellate process, rather 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.  Clemency is an act of mercy, or instance of leniency, to moderate the severity of the sentence imposed.

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, in this case, has failed to submit evidence that would satisfy this requirement.

2.  Trial by court-martial was warranted by the gravity of the offense 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 record does not show that the applicant had a drug abuse and or an alcohol problem while on active duty or that he ever requested help for such a problem.

5.  The applicant’s youthfulness at the time of enlistment and an apparent lack of maturity is unfortunate.  However, it does not overcome the serious nature of his offenses and the conviction by a court-martial, nor do they provide the Board a basis upon which to grant clemency.

6.  The Board further noted the applicant’s additional contentions and found nothing to substantiate them.

7.  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

____MKP  __TBR___  ___RKS_  DENY APPLICATION

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

INDEX

CASE ID	AR2000050017	
SUFFIX		
RECON		
DATE BOARDED	20001/08/07	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	19790604	
DISCHARGE AUTHORITY	AR635-200, CHAP 3, SEC IV	
DISCHARGE REASON	AS A RESULT OF COURT MARTIAL	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	144.68	
2.	A91.05	
3.	A92.33	
4.	A92.27	
5.		
6.