MEMORANDUM OF CONSIDERATION

		IN THE CASE OF:  

		BOARD DATE:           30 September 2003  
		DOCKET NUMBER:  AR2003085565

	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	
	Mrs. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond J. Wagner		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Margaret V. Thompson		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 be upgraded.

APPLICANT STATES:  That he feels he has changed.  He did well in the Army except for the fact he made some bad choices.  He started out very well.  He was the distinguished honor graduate in advanced individual training and had a lot of pride.  He would like his discharge changed so he can further his education and finish what he started in the Army.  He is no longer an immature child.  He provides no supporting evidence.

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

He was born on 23 August 1976.  He completed high school.  He enlisted in the Regular Army on 3 November 1995.  He completed basic training and advanced individual training and was awarded military occupational specialty 52D (Power Generator Equipment Repairer).  He was promoted to Specialist, E-4 on             1 February 1998.  He was awarded the Army Good Conduct Medal for the period 3 November 1995 – 2 November 1998.

The applicant departed absent without leave (AWOL) on 4 January 1999 and returned to military control on 2 February 1999.  There is no evidence that he received punishment for this AWOL.

On 22 November 1999, the applicant pled guilty to and was convicted by a general court-martial of three specifications of wrongfully distributing methamphetamines in March 1999 (3.7 grams, 3.7 grams, and 7.7 grams, respectively), of conspiracy (with a Sergeant) to produce methamphetamines in July 1999, and of attempted larceny of private property of a value less than $100.00 in July 1999.  His approved sentence was to forfeit all pay and allowances, to be discharged with a bad conduct discharge, and to be confined for 42 months (that amount in excess of 36 months suspended for 36 months).  

On 15 August 2000, the U. S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence.  

On 28 September 2000, the Army Clemency and Parole Board denied the applicant's request for parole, noting that, although he had a good overall record in confinement and had participated in the recommended treatment, it was felt he had not yet fulfilled the punitive, deterrent, and rehabilitative aspects of his sentence for serious offenses.

On 16 November 2000, the U. S. Court of Appeals for the Armed Forces denied the applicant's petition for a grant of review.  

On 11 July 2001, the applicant was discharged, with a bad conduct discharge, pursuant to his conviction by court-martial.  He had completed 3 years,              11 months, and 13 days of creditable active service and had 624 days of lost time (29 days AWOL and 595 days confinement).

On 20 September 2001, the Army Clemency and Parole Board denied the applicant's request for parole.  The Army Clemency and Parole Board had previously granted a request to reconsider his case for parole contingent on his continued good conduct and progress in treatment and rehabilitation.  However, that board noted that he had not continued good conduct and progress in treatment and rehabilitation.

Army Regulation 635-200 governs the separation of enlisted personnel.  In pertinent part, it 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.  A general discharge is a separation from the Army under honorable conditions.  It is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

Title 10, U. S. Code, section 1552(f) states that, with respect to records of courts-martial tried or reviewed under the Uniform Code of Military Justice, the Board's action may extend only to action on the sentence of a court-martial for purposes of clemency.  

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.  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.

2.  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.

3.  The Board notes that the applicant was almost 23 years old at the time of the offenses and had over 3 years of service in the Army.  He should have known what the consequences of such serious misconduct would be.  The Board concludes that there are insufficient grounds for upgrading the applicant's discharge for clemency reasons.

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

__rjw___  __mhm       __mvt___  DENY APPLICATION

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

INDEX

CASE ID	AR2003085565	
SUFFIX		
RECON		
DATE BOARDED	20030930	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	Mr. Chun	
ISSUES         1.	105.01	
2.		
3.		
4.		
5.		
6.