MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           22 August 2002
	DOCKET NUMBER:   AR2002073657

	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	
	Mr. William Blakely		Analyst	

  The following members, a quorum, were present:

	Ms. JoAnn H. Langston		Chairperson	
	Mr. Raymond V. O’Connor, Jr.		Member	
	Ms. Barbara J. Lutz		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 his dishonorable discharge (DD) be upgraded to a general, under honorable conditions discharge (GD).

APPLICANT STATES:  The applicant has offered no argument or explanation with his application to support his request.

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

On 23 May 1986, the applicant entered active duty in the Regular Army for 
3 years.  He was trained in and awarded military occupational specialty (MOS) 16R (Vulcan Crewmember).  The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition, and it confirms that the highest rank he attained during his active duty tenure was private/E-2.

On 26 June 1987, the applicant was convicted consistent with his pleas by a general court-martial of the wrongful distribution of .439 grams of cocaine on 6 January 1987 and the wrongful distribution of 1.9 grams of cocaine on 20 January 1987.  The resultant sentence included a reduction to the rank and pay grade of private/E-1, confinement for 2 years, total forfeiture of all pay and allowances, and a DD.  

On 30 August 1987, the convening authority approved the sentence and ordered all but the DD portion to be executed.  However, that portion of the confinement sentence in excess of one year was suspended.  

On 30 December 1987, the United States Army Court of Military Review examined the applicant’s record of trial and found it to be legally sufficient to support the findings of guilty and the resultant sentence. On 15 March 1988, the unexecuted sentence to confinement was remitted.  On 13 May 1988, the DD portion of the applicant’s sentence was ordered executed, and on 25 May 1988, he was discharged accordingly.  At the time of his discharge, he had completed a total of 1 year, 3 months and 10 days of creditable active military service, and had accrued a total of 243 days of time lost time due to confinement.

Title 10 of the United States Code, section 1552, as amended, does not permit any redress by the Army Board of Correction of Military Records (ABCMR) of the finality of a court-martial conviction and empowers the ABCMR to only change a discharge if clemency is determined to be appropriate.

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.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the punishment imposed.  In this case, the Board finds that the applicant’s conviction and discharge were effected in accordance with applicable law and regulations and that his trial by court-martial was warranted by the gravity of the offenses with which he was charged. 

2.  In addition, the Board finds that the type of discharge received by the applicant appropriately characterizes the misconduct for which he was convicted and accurately reflects his overall record of service.  Therefore, the Board concludes that clemency is not warranted in this case.

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 this 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

__JHL __  __ RVO  _  __BJL __  DENY APPLICATION 

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

INDEX

CASE ID	AR2002073657	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/08/22	
TYPE OF DISCHARGE	 DD	
DATE OF DISCHARGE	18880525	
DISCHARGE AUTHORITY	AR 635-200 Chapter 3.  .  .  .  .  	
DISCHARGE REASON	As a result of CM	
BOARD DECISION	 DENY	
REVIEW AUTHORITY		
ISSUES         1.	105.0100	
2.		
3.		
4.		
5.		
6.