MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           30 May 2002        
	DOCKET NUMBER:   AR2002070795

	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. Raymond V. O’Connor		Chairperson	
	Mr. John P. Infante		Member	
	Ms. Paula Mokulis		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:  In effect, that clemency in the form of a general discharge be granted.
  
APPLICANT STATES:  In effect, that his incarceration helped him find a trade and prepare him for the civilian world.  He became a licensed barber and owned and operated his own barber shop for ten years in California.  However, due to the rising energy costs in California he closed his barber business in August 2001.  He contends that he is not proud of the way his military career ended and that he is sorry for his poor decision making during his short military career.  In support of his application, he submits a character reference letter and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).     

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

The applicant enlisted in the Army National Guard on 1 November 1984.  He was ordered to active duty for training on 24 June 1985 and was released from active duty on 4 October 1985.  The applicant was honorably discharged from the Army National Guard on 30 March 1987 for enlistment in the Regular Army.  He entered active duty on 8 April 1987 for a period of 3 years.  He served as an indirect fire infantryman in Germany from 26 April 1987 through 14 October 1988.

DA Form 4187 (Personnel Action), dated 28 January 1988, shows that the applicant received nonjudicial punishment on 7 January 1988 and was reduced to private.  No other details are contained in the available records.

On 1 November 1988, the applicant was convicted by a general court-martial of conspiring to distribute marijuana in the hashish form, distributing marijuana in the hashish form and failing to pay a debt.  He was sentenced to forfeit all pay and allowances, to be confined for 18 months and to be discharged with a bad conduct discharge.  On 18 November 1988, the convening authority approved  the sentence.

On 9 January 1989, the United States Army Court of Military Review affirmed the findings of guilty and the sentence.  The bad conduct discharge was ordered executed on 6 April 1989.
 
Accordingly, the applicant was discharged with a bad conduct discharge on 
7 July 1989 under the provisions of Army Regulation 635-200, chapter 3, as a result of court-martial.  He had served 1 year, 6 months and 22 days of total active service with 248 days lost due to confinement.    

Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Paragraph 3-11 of this regulation states that a soldier will be given a bad conduct discharge 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. 

Section 1552(f), Title 10, United States Code states that the ABCMR can only review records of court-martial and related administrative records to correct a record to accurately reflect action taken by reviewing authorities under the Uniform Code of Military Justice (UCMJ) or to take clemency action.

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 regarding his post service achievements.   The Board also considered the character reference letter provided in support of the applicant’s claim.  However, good post service conduct alone is not a basis for upgrading a discharge.  

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations.  

3.  The applicant has failed to show through the evidence submitted with his application or the evidence of record that the actions taken in his case were in error or unjust.  

4.  The Board reviewed the applicant’s record of service which included one nonjudicial punishment and one general court-martial conviction for conspiracy to distribute marijuana, failing to pay a just debt, and distributing marijuana in the hashish form and determined that his military record was not satisfactory.  Therefore, the Board determined that clemency in the form of a general discharge was not warranted in this case.  

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

RVO____  JPI_____  PM______  DENY APPLICATION

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

INDEX

CASE ID	AR2002070795	
SUFFIX		
RECON		
DATE BOARDED	20020530	
TYPE OF DISCHARGE	(BCD)	
DATE OF DISCHARGE	19890707	
DISCHARGE AUTHORITY	AR 635-200 Chapter 3	
DISCHARGE REASON	As a result of court-martial	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.0200	
2.		
3.		
4.		
5.		
6.