MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           27 September 2001
	DOCKET NUMBER:   AR2001051580

	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. Carolyn G. Wade		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. Eric N. Andersen		Member	
	Mr. Thomas E. O'Shaughnessy		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 the Army Board for Correction of Military Records (ABCMR) carefully review his case to determine if entrapment was involved in his receiving a Bad Conduct Discharge (BCD).  In effect, the applicant is requesting that his court-martial conviction be set aside and his BCD be upgraded.

APPLICANT STATES:  In effect, that he was entrapped into committing his misconduct because he did not approach the arresting officer, the arresting officer approached him and asked him if he could get him some marijuana.
In support of his application, the applicant submitted a statement in his own behalf.

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

He enlisted in the Regular Army on 1 December 1982 for a period of 4 years.  He enlisted for the United States Army Training of Choice Enlistment Option and training in Military Occupational Specialty (MOS) 63J, Quartermaster Chemical Equipment Repairman.  Following completion of all military training, the applicant was awarded MOS 63J and was assigned to Fort Riley, Kansas.

On 28 September 1984, the applicant was convicted by a general court-martial at Fort Riley of three specifications of wrongful distribution of marijuana on three separate occasions (23 May 1984, 25 June 1984, and 27 June 1984).  The findings of guilty as to the charge and its specifications were based on the applicant’s pleas of guilty.  He was sentenced to reduction in rank to private/E-1, confinement for 4 months, forfeiture of all pay for 4 months, and a BCD.  On 
3 December 1984, the adjudged sentence was approved, and ordered duly executed, except for the BCD.  The applicant was confined at Fort Riley.

On 7 January 1985, the applicant, having completed his sentence to confinement, was placed on excess leave pending appellate review of his court-martial conviction.

On 20 February 1985, the United States Army Court of Military Review affirmed the approved findings of guilty and the sentence.

On 7 June 1985, the appellate review was completed, the sentence was affirmed, and the BCD was ordered to be executed.

On 17 June 1985, the applicant was discharged after completing 2 years, 3 months, and 6 days of active military service and accruing 162 days of lost time.

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 BCD pursuant only to an approved sentence to a general court-martial 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 set aside a conviction.  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 offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

3.  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

_RVO___  __ENA __  __ENA __  DENY APPLICATION

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

INDEX

CASE ID	AR2001051580	
SUFFIX		
RECON		
DATE BOARDED	20010927	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	19850617	
DISCHARGE AUTHORITY	AR 635-200, c3	
DISCHARGE REASON	As a result of court-martial	
BOARD DECISION	DENY	
REVIEW AUTHORITY	Director	
ISSUES         1.	105.0600.0000	
2.	144.6800.0000	
3.	144.8505.0000	
4.		
5.		
6.