MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            15 March 2000
	DOCKET NUMBER:   AR1999030450

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Margaret K. Patterson		Member	
	Mr. Van B. Cunningham		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 dishonorable discharge be upgraded to honorable.

APPLICANT STATES:  That his discharge was based on his AWOL time and drug abuse and that he has been clean and sober for 3 years now and has proven to be a good employee.  He further states that he now understands that he suffered from the disease of alcoholism; which is hereditary, and believes that his life has been outstanding since he has been in sobriety.  He goes on to state that he believes that the punishment he received was too harsh and he desires to have his discharge upgraded.  In support of his application he submits 11 third party statements which applaud his post service citizenship, his commitment to sobriety, and his good employment record.

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

He enlisted on 24 October 1980 for a period of 3 years, training as a motor transport operator, and assignment to Korea.  He remained on active duty through a series of continuous reenlistments and was promoted to the pay grade of E-5 on 2 July 1983.

On 28 November 1988 the applicant’s commander initiated a request to bar the applicant from reenlistment based on his being late for formations, details, and assigned duties.  He further indicated that the applicant could not follow orders, that he failed to respond to numerous counseling sessions, and that he demonstrated no potential for future service.  The applicant indicated that he desired to submit a statement in his own behalf.

However, on 5 December 1988, the applicant went AWOL and remained absent until 8 December 1988.  He again went AWOL on 12 December and remained absent until 13 December 1988.  On 28 December 1988 he went AWOL and remained absent until he was returned to military control on 15 January 1989.

Meanwhile, the appropriate authority (a major general) approved the bar to reenlistment on 31 January 1989. 

On 28 April 1989, pursuant to his pleas, he was convicted by a general        court-martial of six specifications of failure to go to his place of duty, four periods of being AWOL, two specifications of disobeying a lawful order from a commissioned officer, breaking restriction, one specification of disobeying a lawful order from a superior NCO, two specifications of cocaine use, one specification of bribery, and two specifications of escape from confinement.  He was sentenced to confinement for 3 years, a forfeiture of pay, reduction to the pay grade of E-1, and a dishonorable discharge.

The convening authority approved the findings and sentence of the court-martial; However, in accordance with a pre-trial agreement, he suspended 18 months of the sentence to confinement for a period of 12 months, unless sooner vacated. 

The applicant appealed his conviction to the Army Court of Military Review (CMR) contending that he was represented by ineffective trial defense counsel because they would not allow an expert on cocaine addiction to testify on his behalf, to offer evidence of his cocaine addiction, and failed to present evidence that he was subjected to illegal pre-trial confinement.  After reviewing the affidavits submitted by the civilian and military trial defense counsel, the CMR determined that there was no doubt that the matters being raised by the applicant were thoroughly discussed with the applicant prior to trial and that in each instance he (the applicant) had decided not to present evidence on the matters.  In regard to the testimony of an expert witness on cocaine addiction, his civilian counsel believed that the expert would have brought out negative information that the applicant was a sociopath with a long history of drug abuse and violence which would further aggravate his case.  He also believed that the witness would not be credible before a military panel due to his appearance and demeanor.  His defense counsel also believed that his eight positive urine samples and his failed rehabilitative efforts would do more harm than good if presented as evidence and after extensive discussions, the applicant apparently agreed.  The same held true regarding the pre-trial confinement issue in that it was discussed before hand and the applicant agreed that it would do more harm than good.  The CMR found no basis to the applicant’s argument of ineffective counsel and affirmed the findings and sentence as agreed to in the pre-trial agreement on 23 July 1990. 

Accordingly, the applicant was dishonorably discharged on 1 November 1990 pursuant to his general court-martial conviction.  He had served 10 years, 9 months, and 13 days of total active service and had 1 year, 2 months, and 10 days of lost time due to AWOL and imprisonment.

His records show that he was awarded the normal service medals for his service and education and that he never received any awards for outstanding or exceptional service or achievement.

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.  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 the aforementioned requirement. 

2.  The applicant was properly discharged pursuant to a sentence by a general court-martial with no indication of any violations of any of the applicant’s rights.

3.  The applicant’s contentions and supporting documents have been noted by the Board.  However, they are not sufficiently mitigating when compared to the offenses for which he was charged and his otherwise undistinguished record of service.

4.  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

___rvo __  ___mkp__  __vbc___  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999030450	
SUFFIX		
RECON		
DATE BOARDED	2000/03/15	
TYPE OF DISCHARGE	DD	
DATE OF DISCHARGE	1990/11/01	
DISCHARGE AUTHORITY	GCM	
DISCHARGE REASON	36	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  31 	105.0100/GCM CONV	
2.		
3.		
4.		
5.		
6.