MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            28 August 2003
	DOCKET NUMBER:   AR2003086536

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Thomas Lanyi		Member	
	Mr. Harry B. Oberg		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 (BCD) be upgraded to an honorable or general discharge.

APPLICANT STATES:  In effect, that he desires to have his discharge upgraded because he has acquired new skills as a networking engineer and an upgrade would assist him in starting a new career.

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

He enlisted in St. Louis, Missouri, on 20 April 1983, for a period of 3 years and training as a tank system mechanic.  He successfully completed his training at Fort Knox, Kentucky, and was transferred to Germany on 17 September 1983.  He was advanced to the pay grade of E-3 on 20 April 1984.

On 12 April 1985, nonjudicial punishment was imposed against him for the wrongful possession and use of marijuana.  His punishment consisted of a reduction to the pay grade of E-2 (suspended until 12 October 1985), a forfeiture of pay, extra duty and restriction.

On 16 July 1985, he plead guilty and was convicted by a general court-martial of possession with intent to distribute 15 grams of hashish, distribution of 5.14 grams of hashish, and the distribution of 5.55 grams of hashish.  He was sentenced to a BCD, confinement for 18 months, forfeiture of all pay and allowances and reduction to the pay grade of E-1.  Pursuant to a pretrial agreement, the convening authority approved only so much of the sentence as provides for a BCD, confinement for 9 months, forfeiture of all pay and allowances and reduction to the lowest enlisted grade.

On 12 November 1985, the United States Army Court of Military Review (USACMR) affirmed only so much of the findings of guilty of specification one of the charge, with respect to quantity, as finds that the applicant wrongfully possessed with intent to distribute 9.86 grams, more or less, of marijuana in the hashish form.  That court also affirmed the remaining findings and sentence imposed by the convening authority and opined that the applicant suffered no prejudice as to his sentence.  

On 30 January 1986, the United States Court of Military Appeals denied the applicant's petition for grant of a review of the decision of the USACMR.

Accordingly, he was discharged with a BCD on 25 March 1986, pursuant to a duly reviewed and affirmed court-martial conviction.  He had served 2 years, 3 months and 25 days of total active service and had 219 days of lost time due to imprisonment.

Title 10, United States Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that the Board is not empowered to set aside a conviction.  Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.  

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.  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.

2.  The type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case.

3.  The applicant’s contentions have been noted by the Board.  However, they are not sufficiently mitigating to warrant relief when compared to the seriousness of his offense and his overall undistinguished record of service.

4.  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.

5.  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

__hbo___  __tl_____  __ao____  DENY APPLICATION

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

INDEX

CASE ID	AR2003086536	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2003/08/28	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	1986/03/25	
DISCHARGE AUTHORITY	AR635-200/GCM	
DISCHARGE REASON	GCM	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  675	144.6800/A68.00	
2.		
3.		
4.		
5.		
6.