MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           16 October 2001                   
	DOCKET NUMBER:   AR2001060057

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Regan K. Smith		Member	
	Mr. Donald P. Hupman, Jr.		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 be upgraded to honorable.

APPLICANT STATES:  That he feels he has paid his debt.  He was a one-time drug user.  He received a cruel and unjust punishment for a one-time offense.  He wishes to have some of his dignity restored.  He provides no supporting evidence.

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

He enlisted in the Regular Army on 14 June 1977.  He was honorably discharged on 15 April 1980 for the purpose of immediately reenlisting on 16 April 1980.  

On 13 November 1980, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for absenting himself from his unit.  His punishment was a reduction to pay grade E-3 (suspended for 90 days), a forfeiture of $150.00 pay (suspended), and 14 days extra duty.

On 6 July 1981, the applicant was removed from the Primary Noncommissioned Officer Course for missing the 5 July 1981, 6:00 p. m. formation.

On 5 December 1981, the applicant was promoted to Sergeant, E-5.

On 22 March 1983, the applicant pleaded guilty to and was convicted by a general court-martial of wrongfully distributing 1.27 grams of marijuana in the hashish form and of wrongfully introducing 1.27 grams of marijuana in the hashish form into a military unit for the purpose of distribution.  He was sentenced to be discharged with a bad conduct discharge, to be confined at hard labor for 100 days, to forfeit $300.00 pay for 3 months, and to be reduced to pay grade E-1.  The sentence was approved except for that portion of confinement at hard labor in excess of 3 months, which was suspended for 6 months.

On 6 June 1983, the applicant was placed on excess leave without pay and allowances pending appellate review.

On 10 January 1986, the U. S. Army Court of Military Review reviewed the applicant’s case.  The applicant had contended that the convening authority was disqualified to refer the charges to trial and to take action in his case and that he was deprived of favorable character witnesses and thereby denied a fair sentencing hearing.  Citing three earlier Court of Military Review cases, the Court found that the convening authority was not disqualified to refer the case to trial.  They were also persuaded that his pleas of guilty were not tainted by unlawful 

command influence.  Their disposition did not rest on his failure to raise the issue of witness deprivation.  A remaining assignment of error and an alleged error personally asserted by the applicant were considered and found to be without merit.  In accordance with their opinion in one of the earlier cited cases, the record of trial was returned to The Judge Advocate General for submission to a different convening authority to take action in accordance with the procedures outlined in that case.

The applicant’s case was returned to a different convening authority who approved only so much of the sentence as provided for a bad conduct discharge, confinement at hard labor for 3 months, a forfeiture of $300.00 pay for 3 months, and a reduction to pay grade E-1.  

On 14 November 1986, the U. S. Army Court of Military Review affirmed the findings of guilty and the sentence.  

On 13 May 1988, the applicant was discharged with a bad conduct discharge pursuant to his court-martial sentence.

The Manual for Courts-Martial, United States 1969 revised edition, change 7 dated 15 April 1983 provided that the maximum punishment for wrongful distribution of marijuana was a dishonorable discharge, forfeiture of all pay and allowances, and 15 years confinement at hard labor. 

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.  The applicant was a noncommissioned officer who abused the trust and confidence placed in him.  The sentence given was less than the maximum he could have received.

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___  __rks___  __dph___  DENY APPLICATION

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

INDEX

CASE ID	AR2001060057	
SUFFIX		
RECON		
DATE BOARDED	20011016	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	105.01	
2.		
3.		
4.		
5.		
6.