RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:             22 January 2004                  
	DOCKET NUMBER:     AR2003091646

	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. Joseph A. Adriance 		Analyst	

  The following members, a quorum, were present:

	Ms. Joann H. Langston		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Ronald J. Weaver		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, in effect, that his dishonorable discharge (DD) be upgraded.

2.  The applicant states, in effect, that due to his age at the time, he had no respect for authority and never really had an understanding of the impact of his actions.  He claims that since his separation, he has matured and turned his life around.  

3.  The applicant provides no additional documents or evidence in support of his application.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 

1.  Counsel requests only that it be notified of actions taken on this application.  

2.  Counsel provides no specific supporting statement or evidence in support of the application.  

3.  Counsel provides a letter of advise it provided to the applicant pertaining to his application to the Board.  

CONSIDERATION OF EVIDENCE: 

1.  The applicant initially enlisted in the Regular Army and entered active duty on 3 March 1983.  His date of birth is 1 June 1961 and at the time he entered active duty he was less than three months short of being 22 years of age.  He was trained in and awarded military occupational specialty (MOS) 62F
(Crane Operator) and the record shows that he served overseas in Germany for 22 months.  

2.  During his tenure on active duty, the applicant earned the following awards:  Army Good Conduct Medal; Army Service Ribbon; and Expert Marksmanship Qualification Badge with Rifle and Hand Grenade Bars.  There are no other specific acts of valor, significant achievement, or service warranting special recognition documented in his military service record.  

3.  The applicant’s record confirms that he was promoted to the rank of specialist (SPC) on 1 May 1985 and that this was the highest rank he attained while serving on active duty.  It also shows that he was reduced to the rank of private/E-1 (PV1) as a result of nonjudicial punishment (NJP) action taken on
27 March 1986.  

4.  On 27 March 1986, the applicant accepted NJP under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for the wrongful possession and distribution of hashish.  His punishment for this offense included a reduction to PV1, forfeiture of $319.00 per month for two months, and 45 days of restriction and extra duty.  

5.  On 5 December 1986, pursuant to his pleas, the applicant was found guilty of the following six specifications of violating Article 112a of the UCMJ on the dates indicated by a general court-martial (GCM):  on or about 17 July 1986, wrongfully distribute some amount of marijuana in the hashish form; on or about late July or early August 1986, wrongfully distribute some amount of marijuana in the hashish form; on or about 19 August 1986, wrongfully distribute approximately 4.4 grams of marijuana in the hashish form; on or about 19 August 1986, wrongfully possess approximately 15 pieces of marijuana in the hashish form; on or about 17 September 1986, wrongfully distribute some amount of marijuana in the hashish form; and on or about 17 September 1986, wrongfully distribute some amount of marijuana in the hashish form.  The resultant sentence included a forfeiture of all pay and allowances, discharge from the service with a DD, and confinement for five years.  

6.  On 23 January 1987, the GCM convening authority approved the sentence on the applicant and ordered all of it with the exception of the DD to be executed.  On 30 April 1987, the United States Army Court of Military Review upon consideration of the entire record, held that the findings of guilty and the sentence as approved by the GCM convening authority were correct in law and fact.  Accordingly, the guilty finding and the sentence were affirmed.

7.  On 10 March 1988, GCM Order Number 76, issued by the United States Disciplinary Barracks, US Combined Arms Center and Fort Leavenworth, Fort Leavenworth, Kansas, directed that the DD portion of the applicant’s sentence 
be executed based on the guilty findings and sentence having been finally affirmed.  On 15 April 1988, the applicant was discharged accordingly.  

8.  The DD Form 214 issued to the applicant on the date of his separation shows that he received a DD, under the provisions of paragraph 3-10, Army Regulation 635-200, by reason of court-martial. It also shows that at the time of his separation, he held the rank of PV1, and he had completed 3 years and 9 months of creditable active military service.  

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, Section IV, establishes policy and procedures for separating members with a dishonorable or bad conduct discharge; and provides that a soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial; and that the appellate review must be completed and affirmed sentence ordered duly executed.

10.  Title 10 of the United States Code, section 1552 as amended does not permit any redress by this Board of the finality of a court-martial conviction and empowers the Board to only change a discharge if clemency is determined to be appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms that the applicant was over 21 years of age at the time he entered active duty.  Further, he had completed over three years of his four year enlistment and was almost 25 years of age at the time of his first disciplinary infraction in March 1986.  Finally, at the time of his GCM conviction, he had already received the Army Good Conduct Medal for his first three years of honorable service.  These facts clearly establish the fact that the applicant was mature enough to successfully serve and complete his enlistment without committing the offenses that led to his GCM conviction and discharge.  

2.  The evidence of record further confirms that the applicant’s trial by 
court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.

3.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the punishment imposed.  

4.  The applicant’s entire record of service and his post service conduct were carefully considered; however, neither were sufficiently meritorious to warrant clemency given the seriousness of the offense for which he was convicted.  In view of the foregoing, there is no basis for granting clemency in this case. 

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_JHL___  __AO__  __RJW___    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.

		Joann H. Langston
		 CHAIRPERSON

INDEX

CASE ID	AR2003091646	
SUFFIX		
RECON		
DATE BOARDED	2004/01/22	
TYPE OF DISCHARGE	DD	
DATE OF DISCHARGE	1988/04/15	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	GCM Conviction	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  360	144.0000	
2.		
3.		
4.		
5.		
6.