RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  8 January 2004
	DOCKET NUMBER:  AR2003088520

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Ms. Kathleen A. Newman		Chairperson	
	Ms. Linda M. Barker		Member	
	Mr. John T. Meixell		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests that his bad conduct discharge (BCD) be upgraded to under honorable conditions.

2.  The applicant states that it is his belief that an upgrade and change to his reenlistment (RE) code is automatic on application after 6 months.

3.  The applicant provides no documents to support his request.

CONSIDERATION OF EVIDENCE: 

1.  The applicant enlisted in the Regular Army on 10 November 1981 with over 5 years and 8 months prior active duty.  He completed training as a food service specialist and was promoted to pay grade E-4 effective 1 September 1982.

2.  The applicant was assigned to Germany on 21 June 1984 and was promoted to pay grade E-5 effective 1 October 1985.  He was reduced to pay grade E-4 effective 2 December 1985 for misconduct.

3.  On 20 May 1986, the applicant was convicted, pursuant to his pleas, by a General Court-Martial (GCM) for possession and distribution of marijuana and breaking restriction.  The approved sentence included confinement for 18 months, reduction to the lowest enlisted grade, forfeiture of all pay and allowances, and a BCD.

4.  On 31 October 1986 the findings and sentence were affirmed.  Effective 18 May 1987 the applicant was issued a BCD, in pay grade E-1, based on the result of a court-martial.  His RE code is listed as RE-4.  His separation document indicates he had 4 years, 6 months, and 4 days net active service this period and 5 years, 8 months, and 20 days total prior active service.  The applicant had 365 days lost time due to confinement.

5.  Army Regulation 15-180 provides for petitioning the Army Discharge Review Board (ADRB), using DD Form 293, for upgrade of the characterization for discharge.  The regulation specifies that the ADRB may not consider an appeal for an upgrade from an applicant discharged as a result of a GCM.

6.  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.

7.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 3-7 provides that a discharge under honorable conditions is a separation for satisfactory service.  The under honorable conditions characterization is appropriate when the reason for separation allows such characterization.

8.  Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of Armed Forces RE codes, including RA RE codes.  RE-4 indicates that the applicant was disqualified from further service.

9.  The U. S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

10.  If the applicant desires to pursue a pardon, pardon issues are handled by the Office of the Pardon Attorney, Department of Justice.  He should contact the Pardon Attorney at the following address:  Office of the Pardon Attorney,           4th Floor, 500 First Street, NW, Department of Justice, Washington, DC  20530-0001 for further information.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms that the applicant’s conviction and discharge with appropriate RE code 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.

2.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  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 applicant does not warrant an upgrade and he does not provide a sufficient reason for granting the relief he now requests.  It would not be appropriate to change the records to show that he was discharged under honorable conditions on 18 May 1987 or entitled to a change in his RE code.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__kn___  ___lb___  ___jm___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned to upgrade his discharge to under honorable conditions.

		___Kathleen A. Newman___
		        CHAIRPERSON

INDEX

CASE ID	AR2003088520	
SUFFIX		
RECON		
DATE BOARDED		
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	19870518	
DISCHARGE AUTHORITY	AR 635-200, CH 3	
DISCHARGE REASON	A68.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.02	
2.	100.03	
3.		
4.		
5.		
6.