MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           13 December 2001                   
	DOCKET NUMBER:   AR2001061387

	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. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler 		Chairperson	
	Mr. Mark D. Manning 		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:  That his bad conduct discharge be upgraded. 

APPLICANT STATES:  In effect, that all of his charges were drug related.  He contends that he was court-martialed the same month he was supposed to be discharged.  He also contends that he never came up positive for drugs, never got caught with drugs and that it was all hearsay.  He further states that his lawyer informed him that three people made statements against him, that he was “good as guilty”, so he made a plea bargain to drop some of the charges. 

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

The applicant enlisted on 7 May 1992 for a period of 3 years.  He successfully completed basic and advanced individual training and was transferred to Fort Hood, Texas, for duty as a power generation equipment repairer.

On 27 September 1993, nonjudicial punishment was imposed against the applicant for being drunk on duty.  His punishment consisted of a reduction to 
E-2, a forfeiture of pay (suspended) and extra duty.   

On 1 August 1994, the applicant was promoted to specialist.  On 27 January 1995, he was awarded the Army Achievement Medal.

On 30 March 1995, the applicant was convicted by a general court-martial of using marijuana, distributing lysergic acid dietylamide (LSD) on two separate occasions and obstructing justice.  He was sentenced to a bad conduct discharge, reduction to E-1, forfeiture of all pay and allowances and confinement for 2 years.  On 20 June 1995, the convening authority approved only so much of the sentence as provides for reduction to E-1, confinement for 24 months, forfeiture of all pay and a bad conduct discharge.  But the execution of that part of the sentence extending to confinement in excess of 18 months was suspended for 2 years.    

The applicant’s records show that he was confined at Fort Sill, Oklahoma, from 30 March 1995 through 14 December 1995.  He was paroled on 15 December 1995, returned to military control on 5 September 1996 and placed into confinement at Fort Leavenworth, Kansas.   

The applicant’s appellate review was completed on 26 March 1997. 

The applicant was discharged pursuant to his general court-martial conviction on 4 April 1997 and issued a bad conduct discharge.  He had served 2 years, 
10 months and 23 days of total active service and had 38 days lost time due to confinement.  The applicant was retained in service for 697 days for the convenience of the Government (confinement from 7 May 1995 through 
14 December 1995; parole from 15 December 1995 through 4 September 1996; and confinement from 5 September 1996 through  4 April 1997).

Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

Army Regulation 635-200, paragraph 3-7, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the soldier’s separation specifically allows such characterization.

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 Board considered the applicant’s contentions that his charges were all drug related, that he never came up positive for drugs, never got caught with drugs and that it was all hearsay.  However, evidence of record shows that the applicant pled guilty at a general court-martial to using marijuana, distributing LSD on two separate occasions and obstructing justice.  

2.  The Board reviewed the applicant’s record of service which included one nonjudicial punishment, one general court-martial conviction and 735 days lost and determined that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to an honorable discharge.  

3.  The Board also determined that the seriousness of the drug offenses and the obstruction of justice charge for which the applicant received a general court-martial conviction are too serious to warrant relief in the form of a general discharge.

4.  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.

5.  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.

6.  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

SAC____  MDM____  RKS____  DENY APPLICATION

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

INDEX

CASE ID	AR2001061387	
SUFFIX		
RECON		
DATE BOARDED	20011213	
TYPE OF DISCHARGE	(BCD)	
DATE OF DISCHARGE	19970404	
DISCHARGE AUTHORITY	AR 635-200 Chapter 3-11	
DISCHARGE REASON	As a result of court-martial	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.0200	
2.		
3.		
4.		
5.		
6.