MEMORANDUM OF CONSIDERATION

	IN THE CASE OF

	BOARD DATE:            20 July 2000          
	DOCKET NUMBER:   AR1999031337

	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. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A Crumpler		Chairperson	
	Ms. Ann M. Campbell 		Member	
	Mr. Kenneth L. Wright		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:  In essence, he was a good soldier prior to the offense for which he was discharged.  He was “Trainee of the Cycle” in 1971 and he received the Expert Infantryman’s Badge in Korea in 1972.  At the time of his discharge he was going through a divorce and he was under severe stress.  His chain of command did not assist him with his personal problems.  He still suffers from post traumatic stress disorder as a result of his service during “Reforger Five” in 1973.  Alcohol and drug addiction has left him paralyzed.  He has spent the last 22 years working hard and being a good citizen.  He submits a letter written in his own behalf in support of his request.

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

Prior to the enlistment under review, he served honorably in the Regular Army from 20 July 1971-31 July 1973.  On 1 August 1973, he reenlisted for a period of 
5 years and his previous military occupational specialty (MOS) 
11B (Infantryman).  

He served in Korea from 19 December 1971-8 January 1973.  On 22 February 1973, he was assigned to Fort Riley, Kansas.

On 28 June 1973, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, of the Uniform Code of Military Justice for operating a motor vehicle on post without a valid state license plate or valid post registration on 9 May 1973.  

On 14 April 1974, he was assigned to Germany.  On 6 July 1976, he was convicted by a general court-martial of wrongfully having in his possession 
315 grams, more or less of marihuana on 4 May 1976 and for wrongfully transferring the same amount of marihuana.  He was also convicted of communicating a threat to injure another soldier on 5 May 1976.  He was sentenced to reduction from pay grade E-5 to pay grade E-1, confinement at hard labor for 1 year, forfeiture of all pay and allowances, and to receive a BCD.

On 12 August 1976, the sentence was approved.  That portion of the sentence adjudging confinement at hard labor in excess of 9 months was suspended for a period for 9 months.  

On 9 February 1977, the unexecuted portion of the sentence to forfeit all pay and allowances was remitted and the applicant having served the period of confinement adjudged was restored to duty and placed on excess leave through 9 November 1977 pending completion of the appellate review.
On an unknown date, the United States Court of Military Review affirmed the finding, and approved the sentence of the general court-martial.  

On 9 November 1977, the applicant was separated under the provisions of chapter 11, Army Regulation 635-200, as a result of court-martial with a BCD.  He had served 3 years, 8 months and 1 day of active military service on the enlistment under review.  He had also completed 2 years and 11 days of prior active service.  He had 218 days lost time due to being in confinement.  

He is entitled to the following decorations and awards:  the Army Good Conduct Medal, the National Defense Service Medal and the Armed Forces Expeditionary Medal (Korea).

The statutory authority under which this Board was created (Title 10, United States 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 clemency a military record 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.

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 applicant violated the Army's policy not to possess or use illegal drugs, therefore, he compromised the special trust and confidence placed in him as a non-commissioned officer (NCO).  The applicant, as an NCO, had the duty to support and abide by the Army's drug policies. By possessing and transferring illegal drugs, he knowingly risked his military career and this misconduct diminished the quality of service below that meriting an honorable discharge.  

4.  The applicant had many legitimate avenues through which to obtain assistance with his personal problems without committing the misconduct which led to the separation action under review.
5.  Further, the Board took into consideration all of the applicant’s service to include his prior honorable period of service and the awards that he received and concluded that the quality of his service was not determined to be sufficiently meritorious to warrant an upgrade of his discharge or to grant clemency.

6.  There is nothing in the applicant’s record and he has presented nothing to show that he was suffering from post traumatic stress disorder at the time of his discharge. 

7.  The applicant’s good post service adjustment is commendable, but provides no basis to grant clemency.

8.  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

__sac___  __amc___  _klw____  DENY APPLICATION

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

						

INDEX

CASE ID	AR1999031337	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000720	
TYPE OF DISCHARGE	(BCD)	
DATE OF DISCHARGE	19771109	
DISCHARGE AUTHORITY	AR635-200, CH 11 	
REASON	A68.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.6800	
2.		
3.		
4.		
5.		
6.