MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           9 March 2000                   
	DOCKET NUMBER:   AR1999031137

	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.

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Mr. Thomas D. Howard, Jr.		Member	
	Ms. Carol Jo Suiter		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 discharge and reason for discharge be changed to Honorable – Secretarial Authority.

APPLICANT STATES:  The applicant defers to counsel. 

COUNSEL CONTENDS:  That the applicant’s discharge was improper and inequitable.  The circumstances surrounding the charge did not warrant a general court-martial.  A summary court-martial or a field grade Article 15 would have been more appropriate.  He only bought a small amount of marijuana to impress an undercover drug officer.  He did not testify at his trial because he did not want to embarrass his wife and children with the appearance of adultery.  This was an isolated incident with an infinitesimal amount of marijuana, not any hard drugs.  The sentence was disproportionate to the offense.  Supporting evidence is as listed in counsel’s brief.

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

After having had prior service in the Army National Guard, he enlisted in the Regular Army on 11 July 1977. 

On 13 November 1980, the applicant accepted non-judicial punishment (NJP) under Article 15, the Uniform Code of Military Justice (UCMJ) for failing to go to his appointed place of duty.  His punishment was to be reduced to Specialist Four, E-4, suspended for 90 days.  The suspension was vacated on                   22 December 1980.

On 29 November 1982, the applicant accepted NJP under Article 15, UCMJ for being indebted to numerous members of his unit and failing to pay said debts.  His punishment was to be reduced to Specialist Four, E-4.

On 6 June 1985, the applicant was promoted to Staff Sergeant, E-6.

On 22 January 1986, the applicant was convicted by a general court-martial of resisting lawful apprehension by an armed forces policewoman and wrongful distribution of .72 grams of marijuana.  A specification of wrongful possession of .30 grams of marijuana was dismissed as being multiplicious for findings 
purposes with the distribution charge.  He was sentenced to confinement for       6 months, to be reduced to Private, E-1, to forfeit $245.00 pay for 6 months and to be discharged with a bad conduct discharge.  

On 7 June 1986, the applicant accepted NJP under Article 15, UCMJ for disobeying a lawful order by having a candy bar in his wall locker.  His punishment was to perform extra duty for 7 days and to be restricted for 7 days.  

On 19 June 1986, the U. S. Army Court of Military Review affirmed the findings of guilty and the sentence.

On 30 September 1986, the applicant was discharged, with a bad conduct discharge, pursuant to his court-martial conviction.  He had completed 9 years,   1 month and 26 days of creditable active service and had 150 days of lost time (confinement).

The Manual for Courts-Martial United States 1984 states that the maximum punishment for resisting apprehension is a bad conduct discharge, forfeiture of all pay and allowances, and confinement for 1 year.  The maximum punishment for wrongful possession of a controlled substance is a dishonorable discharge, forfeiture of all pay and allowances and confinement for 5 years.

Title 10, U. S. code, section 1552, as amended, precludes any action by this Board which would disturb the finality of a court-martial conviction.

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.  Considering the applicant’s rank and prior disciplinary record, the Board concludes that the applicant’s trial by general 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.  The Board also notes that the applicant was not sentenced to the maximum punishment authorized.

3.  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

__JH____  __TDH___  __CJS___  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999031137	
SUFFIX		
RECON		
DATE BOARDED	20000309	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	105.01	
2.		
3.		
4.		
5.		
6.