MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           18 DECEMBER 2001
	DOCKET NUMBER:   AR2001061160

	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. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Thomas Lanyi		Member	
	Mr. Jose A. Martinez		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.  

APPLICANT STATES:  He was told if he "went through a course" while in confinement at Fort Leavenworth, he could have his discharge upgraded.  He submits no evidence in support of his request.

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

The Board considered the applicant’s request on 4 December 2001 and, although they voted to deny relief, the Board, by unanimous vote, determined that the applicant’s failure to file within the statutory time limits should be excused.  Hence the applicant’s case has been reconstituted to excuse his failure to timely file.

He entered active duty on 7 June 1974 at the age of 18.  In 1975 he was punished twice under Article 15 of the UCMJ (Uniform Code of Military Justice) for failing to go to his appointed place of duty.  In August 1977, in spite of the UCMJ actions, he was advanced to pay grade E-4.  In April 1978, following completion of an assignment in Korea, the applicant was assigned to Fort Hood, Texas.  In February 1979 he was punished a third time under Article 15 of the UCMJ for failing to go to his appointed place of duty.  His February 1979 UCMJ action also included punishment for damaging a military vehicle “through neglect” when he revved “up the engine” and popped the clutch which destroyed “a transfer gear case…of a value over 100.00….”

Performance evaluation reports, contained in the applicant’s records, indicate that he was generally rated as having met or exceed “most duty requirements.”  He was a successful graduate of the PLDC (Primary Leadership Development Course) in 1978.

On 14 July 1980, he was convicted by a general court-martial, in consonance with his plea, of possession of 1941 grams (approximately 4 pounds) of marijuana.  His sentence included confinement at hard labor for 12 months, forfeiture of $200.00 pay per month for 2 months, and a bad conduct discharge.  The court martial order indicated that two other charges were “dismissed to the terms of the Pre-Trial Agreement.”

The Table of Maximum Punishment, in effect at the time, indicates that the applicant could have received a Dishonorable Discharge, up to 5 years confinement, and total forfeiture, based on possession of 30 or more grams of marijuana.

On 14 February 1981, the Army Court of Military Review affirmed the conviction, and on 15 July 1981 the bad conduct discharge was executed.

Army Regulation 635-200 states that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

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.  The applicant's separation was executed in accordance with applicable laws and regulations.  There is no evidence of any error.  

2.  Additionally, the Board notes that the applicant’s sentence was appropriate considering the fact that he had approximately 4 pounds of marijuana in his possession and appears to have been consistent with his plea bargain.  His conduct prior to his court-martial was not so meritorious so as to warrant an upgrade of his discharge based on equity.  The applicant has submitted no evidence which would serve as a basis to upgrade his discharge.

3.  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 that requirement.

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

__INW __  __TL____  __JAM __  DENY APPLICATION

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

INDEX

CASE ID	AR2001061160	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20011218	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	142.00	
2.		
3.		
4.		
5.		
6.