MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           1 October 2002
	DOCKET NUMBER:   AR2002074041

	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:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Margaret K. Patterson		Member	
	Mr. Arthur A. Omartian		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 bad conduct discharge (BCD) be upgraded to a general, under honorable conditions discharge (GD).

APPLICANT STATES:  In effect, that his commander denied him the opportunity to attend a substance abuse treatment program, which led to the court-martial charges for which he received a BCD.  He states that he is still being punished for the BCD 12 years later, and wonders how long he has to suffer for his mistake.  He states that an upgrade of his discharge will enhance his ability to gain employment, which would allow him to move out of the homeless situation he is in.  He concludes by stating that he is sorry for his actions that led to his BCD, and hopes that he can receive an honorable or general discharge so that he can at least get a job.

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

On 8 June 1981, the applicant initially entered the Regular Army for 4 years.  He extended his term of enlistment on 10 July 1984 for 17 months and again on 
5 November 1986 for 30 months.  He was trained and served in military occupational specialty (MOS) 63B (Light Wheel Vehicle Mechanic), and the highest rank he attained while serving on active duty was specialist/E-4.  During his active duty tenure, the applicant earned the following awards:  Army Service Ribbon, Army Good Conduct Medal (2nd Award), and Army Achievement Medal.  

The applicant’s record contains an extensive disciplinary history that includes his acceptance of non-judicial punishment (NJP) on the following three occasions for the offenses indicated:  10 August 1987, for being absent without leave (AWOL) on 31 July 1987; 18 November 1987, for being AWOL on 28 October 1987 and 
30 October 1987; and 22 December 1987, for being AWOL from 8 to 
10 December 1987 and 16 to 21 December 1987, failure to go to his appointed place of duty on 12 December 1987 and 13 December 1987, and AWOL on 
15 December 1987.  

On 8 December 1987, the applicant’s unit commander initiated a bar to reenlistment against him, citing the applicant’s record of non-judicial punishment (NJP) for misconduct and his record of counseling for his history of failing to report to duty and for departing his place of duty without his supervisor’s approval.  The commander also stated that in August 1987, the applicant was a self-referral to the Alcohol and Drug Abuse Prevention Control Program (ADAPCP), after admitting to using drugs for over 6 years, and in November 1987, while enrolled in the ADAPCP, he tested positive for cocaine and marijuana on a command directed urinalysis test.  The applicant acknowledged receipt of the bar to reenlistment and his understanding of the basis for the action.  On 4 January 1988, the bar to reenlistment was approved by the appropriate authority.

On 13 April 1988, the applicant was convicted by a general court-martial of one specification of AWOL, five specifications of wrongful use of cocaine, two specifications of wrongful distribution of cocaine, and three specifications each of housebreaking and larceny.  The convening authority approved the sentence of a BCD, confinement for two years, forfeiture of $300.00 pay per month for two years, and a fine of $2,000.00.  

On 25 October 1988, the United States Army Court of Military Review examined the record of trial and found it to be legally sufficient and it affirmed the guilty findings and the sentence of a BCD, confinement for 2 years, forfeiture of $300.00 pay per month for two years, and a fine of $2,000.00.

Pursuant to General Court Martial Order Number 335, dated 3 April 1989, issued by Headquarters, United States Army Correctional Activity, Fort Riley, Kansas, the applicant’s sentence was finally affirmed and the BCD portion was ordered to be executed.  On 5 May 1989, the applicant was discharged accordingly after completing a total of 6 years, 7 months, and 9 days of creditable active military service and having accrued 484 days of time lost due to AWOL and 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.  The Board notes the applicant’s contention that his commander denying him entrance to the substance abuse treatment program was a mitigating factor in the misconduct that ultimately resulted in his discharge.  However, the Board finds this claims lacks merit.  The evidence of record confirms that the applicant was afforded the opportunity to receive substance abuse treatment as indicated by his self-referral to ADAPCP.  

2.  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.  

3.  The evidence of record confirms that the applicant’s conviction and discharge were effected in accordance with applicable law and regulations in effect at the time, and that his trial by court-martial was warranted by the gravity of the offenses with which he was charged. 
4.  Notwithstanding the applicant’s contentions and desires, 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.

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__  __MKP  _  __AAO __ DENY APPLICATION 

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

INDEX

CASE ID	AR2002074041	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/10/01	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	19890505	
DISCHARGE AUTHORITY	AR 635-200.  .  .  .  .  	
DISCHARGE REASON	Result of CM	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.680	
2.		
3.		
4.		
5.		
6.