MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            14 August 2003
	DOCKET NUMBER:   AR2003091082

	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	
	Ms. Deyon D. Battle		Analyst	

The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. James E. Anderholm		Member	
	Ms. Linda M. Barker		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 a general discharge.

APPLICANT STATES:  That he realizes the mistakes that he made when he was in the Army and that he let his fellow soldiers down.  He states that he enjoyed being an infantryman and that there is not a day that passes that he does not regret the choices that he made in the past.  He goes on to state that when he was charged with distribution of illegal drugs he did all that he could do to assist the Criminal Investigation Division with its ongoing investigation.  He states that once he completed his sentence, he returned to his hometown and obtained work as a house framer.  He also states that since his discharge he has been able to turn his mistakes into learning experiences and that he speaks to the youths in his town on the misconceptions of drug use and how it can destroy their lives.  He states that he is ashamed of the mistakes that he made and that he has been clean and drug free since February 2001.  He concludes by stating that he would like to be allowed to reenter the Army and that he believes that the mistakes that he made could possibly help young soldiers from finding themselves in the situation he once found himself in.  In support of his appeal, he submits a letter written by his brother dated 15 March 2003, a letter from a friend dated 31 March 2003 and an undated letter from his employer all attesting to his good post-service conduct.

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

On 4 June 1998, he enlisted in the Army for 4 years in the pay grade of E-1.  He successfully completed his training as an infantryman.

The available records show that on 7 February 2001, the applicant was convicted pursuant to his pleas, by a general court-martial of two specifications of wrongfully distributing a controlled substance (ecstasy).  He was sentenced to a BCD, confinement for 1 year and a forfeiture of all pay and allowances.  

On 17 May 2001, the convening authority approved the findings as adjudged but the execution of that portion of the sentence adjudging confinement in excess of 10 months was suspended for the period of any approved confinement unexecuted at the time of the action by the convening authority, at which time, unless the suspension was sooner vacated, the suspended portion would be remitted without further action.  

The United States Army Court of Criminal Appeals affirmed the findings and sentence as approved by the convening authority.  Accordingly, on 3 April 2002, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 3 as a result of a duly reviewed and affirmed general court-martial conviction.  He had completed 3 years, 1 month and 23 days of total active service and he was furnished a BCD.
On 1 April 2003, the applicant submitted an application to the Army Discharge Review Board requesting an upgrade of his discharge.  However, since that board is not authorized to consider discharges that are the result of a general court-martial conviction, this Board has accepted the DD Form 293 in lieu of the DD Form 149 normally used when applying to the Army Board for Correction of Military Records.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, paragraph 3-11 provides that a soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence duly executed.

Title 10, United Stated Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that the Army Board for Correction of Military Records 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 modify 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.  The actions by the Army in this case were proper, and there is no doubt to be resolved in favor of the applicant.

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 has noted the applicant’s contentions.  The Board also commends the applicant on his post-service conduct.  However, his post-service conduct is not sufficiently mitigating to warrant the relief requested.  He was discharged as a result of a general court-martial conviction for distributing ecstasy.  The type of discharge that he received appropriately reflects his acts of misconduct.

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

__ja ____  __rvo ___  ___lb ___  DENY APPLICATION

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

INDEX

CASE ID	AR2003091082	
SUFFIX		
RECON		
DATE BOARDED	2003/08/14	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	2002/04/03	
DISCHARGE AUTHORITY		
DISCHARGE REASON	AR 635-200, CH 3	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  675	144.6800/BCD	
2.  678	144.6803/SERIOUS OFFENSE	
3.		
4.		
5.		
6.