RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  26 February 2004
	DOCKET NUMBER:  AR2003091330

	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	
	Ms. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Ms. Mae M. Bullock		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 be upgraded to an
honorable discharge.

2.  The applicant states that his discharge was inequitable because it was based on one isolated incident.  He completed 10 years of service with no adverse action. 

3.  The applicant provides several copies of job performance and character references letters.

CONSIDERATION OF EVIDENCE: 

1.  The applicant's military records show he enlisted on 30 April 1984, as a parachute rigger.  He continued to serve through a series of continuous reenlistments.  He was promoted to the pay grade of sergeant (SGT/E-5) with an effective date and date of rank (DOR) of 1 December 1991.

2.  In accordance with his pleas he was found guilty by a general court-martial on 14 April 1995, of possession of marijuana with intent to distribute (specification 1) and distribution of marijuana (specification 2).  His sentence consisted of a reduction to the lowest enlisted grade, a forfeiture of pay, confinement for 2 years and 5 months, and a dishonorable discharge.  The convening authority approved the sentence on 13 July 1995 and, pursuant to a pretrial agreement, suspended that portion of the sentence adjudging confinement in excess of 20 months for a period of 20 months. 

3.  On 21 March 1996, the Army Court of Criminal Appeals set aside and dismissed specification 1 of the charge, alleging wrongful possession of marijuana with intent to distribute.  The finding of guilty on specification 2 was affirmed.  The court affirmed only so much of the sentence as provides for a bad conduct discharge, confinement for 16 months, forfeiture of all pay and allowances, and reduction to the lowest enlisted grade. 

4.  On 25 April 1997, the applicant was discharged from the Army pursuant to the sentence of a general court-martial and was issued a bad conduct discharge.  

5.  The applicant applied to the Army Discharge Review Board (ADRB) on 6 May 2003.  However, his case was ineligible for review by the ADRB due to his conviction by a general court-martial.  This Board accepted his application (DD Form 293 [Application For the Review of Discharge or Dismissal from the Armed Forces of the United States]) in lieu of a DD Form 149 (Application for Correction of Military Record).

6.  The applicant provided several copies of his job performances and character references letters, which stated that he is a valuable employee, dedicated and devoted, performed a variety of different jobs, and has excellent work habits.  

7.  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.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-10 of that regulation provides that a soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial, after completion of appellate review and after such affirmed sentence has been duly executed.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-11 of that regulation provides that a soldier will be given a bad conduct discharge 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.

10.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has provided no evidence to show that his discharge was unjust.  He also has not provided evidence sufficient to mitigate the character of his discharge.

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 regulation.

3.  The applicant's job performance and character references attest that he was a valuable employee, dedicated and devoted, performed a variety of different jobs, and had excellent work habits.  However, this evidence is insufficient to support his request for an upgrade of his bad conduct discharge or to consider clemency.
BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__ao___  ___mb___  __jm___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that 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.

		___Arthur A. Omartian____
		        CHAIRPERSON

INDEX

CASE ID	AR2003091330	
SUFFIX		
RECON		
DATE BOARDED	20040226	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	19970425	
DISCHARGE AUTHORITY	AR 635-200, chapter 3-11	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	360	
2.		
3.		
4.		
5.		
6.