MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           24 July 2001
	DOCKET NUMBER:   AR2000050303

	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. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Ms. Margaret V. Thompson		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:  That his bad conduct discharge (BCD) be upgraded to a general discharge.

APPLICANT STATES:  In effect, that he was convicted of selling drugs when "he had statements from the CID indicating that he did not sell anything."

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

That he had prior honorable service in the Regular Army (RA) from 1 January 1977-7 March 1979 which equals a total of 2 years, 2 months and 4 days of active service.  He was issued a DD Form 214 (Report of Separation from Active Duty) at the end of this period of service.  

On 8 March 1979, he reenlisted in the RA for a period of 3 years and his previous military occupational specialty (MOS) 75D (Personnel Records Specialist), in pay grade E-4.  On 3 March 1980, he was promoted to pay grade E-5.

On 31 August 1981, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for assaulting his wife on 10 August 1981.  It was reported that he grabbed his wife by the throat and he choked her.  His punishment included forfeiture of 
$125.00 pay for 1 month.  

On 15 April 1982, he accepted NJP under the provisions of Article 15, UCMJ for being drunk while on duty on 13 April 1982.  His punishment included reduction from pay grade E-5 to pay grade E-4 (suspended) and 14 days extra duty.  On 23 April 1982, for unknown reasons, the suspended portion of his punishment was vacated and he was reduced to pay grade E-4.

On 22 April 1982, a bar to reenlistment was initiated against the applicant.  The applicant's commander cited the assault offense and his alcohol problem as the bases for the action.  Further, his commander stated that the applicant had been referred to the Community Drug and Alcohol Abuse Center (CDAAC), numerous times.  He had also attended the Extended Care Program in Heidelberg, Germany without long term results.  He was currently enrolled in the local CDAAC, and his progress was encouraging.  He did not appeal the bar.

The available record shows that the applicant was placed in pre-trial confinement from 3-5 May 1982.  He was then returned to duty, but was absent without leave (AWOL) from 13-20 May 1982.  He was again placed in pre-trial confinement.

On 7 July 1982, the applicant was convicted by a general court-martial of 
two charges of wrongfully attempting to sell "Speed", an amphetamine to other 
soldiers and of one charge of attempting to sell "Speed" to three high school students.  He was also convicted of being AWOL from 13-20 May 1982.  He was sentenced to reduction from pay grade E-4 to pay grade E-1; forfeiture of all pay and allowances; to be confined at hard labor for 3 years and to be separated with a Dishonorable Discharge (DD).

On 6 August 1982, the convening authority approved the sentence adjudged except for the sentence to confinement.  The applicant, in accordance with a 
pre-trial agreement was to be confined at hard labor for only 7 months.  The discharge action was suspended pending appellate review of the court-martial.  The record of trial was forwarded to the United States Army Court of Military Review. 

On 9 December 1982, the United States Army Court of Military Review affirmed the findings and the approved sentence.

On 14 December 1982, the unexecuted portion of the approved sentence to confinement at hard labor for 7 months was remitted, he was released from confinement and placed on excess leave.

On 12 August 1983, the applicant was discharged, in absentia, under the provisions of chapter 3, Army Regulation 635-200, and erroneously issued a BCD, as a result of court-martial, instead of the approved sentence to a DD.  His DD Form 214 (Certificate or Release or Discharge from Active Duty) shows that during the period of enlistment under review he completed 3 years, 10 months 
and 28 days of active military service.  He also had 217 days lost time due to being AWOL and in confinement.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, paragraph 3-11, provides that a soldier will be given a DD or BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

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 punishment 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 has failed to submit evidence that would satisfy this requirement.

2.  Trial by court-martial was warranted by the gravity of the offense charged.  Conviction and discharge were effected in accordance with applicable law and regulations.  Even though the applicant was erroneously issued a BCD vice the DD that he should have received, the discharge still appropriately characterizes the misconduct for which he was convicted.  Absent a request from the applicant, the board lacks jurisdiction to correct the applicant's DD Form 214 to reflect his true characterization as "Dishonorable." 

3.  The available records contains evidence that indicates the applicant was convicted of attempting to sell drugs and he has provided nothing to indicate that he was falsely accused of attempting to sell drugs.  Such matters should have been resolved during the court-martial and appellate process.  Therefore, he has established no basis for clemency.

4.  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

__jns___   __mvt___  ___wdp__  DENY APPLICATION

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

INDEX

CASE ID	AR2000050303	
SUFFIX		
RECON		
DATE BOARDED	20010724	
TYPE OF DISCHARGE	(BCD)	
DATE OF DISCHARGE	19820812	
DISCHARGE AUTHORITY	AR 635-200, Chapter 3  	
DISCHARGE REASON	A68.00	
BOARD DECISION		
REVIEW AUTHORITY		
ISSUES         1.	144.6800	
2.		
3.		
4.		
5.		
6.