MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:           12 April 2000
	DOCKET NUMBER:   AR1999034134

	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.

	Ms. McKim-Spilker		Analyst	

  The following members, a quorum, were present:

	Mr. Robert G. Hinkle		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. James P. Stueve		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 (DD) be upgraded to Honorable (HD); that his narrative reason for discharge be changed to Secretarial Authority; and that his Reenlistment Eligibility Code (RE) be changed to RE-1 or RE-2.

APPLICANT STATES:  In a brief by counsel, in effect, that he had a valid pre-trial agreement that was not considered at trial; that he was found not guilty of one of the material charges, but was found guilty of two minor charges, and was sentenced as if he were found guilty of all charges; that his discharge was both inequitable and improper because it was too harsh and not properly supported by the weight of the evidence; that necessary elements to substantiate the charges were missing at trial which constitute an irreversible and erroneous miscarriage of justice; that it was unfair and unjust to add another charge after the finding of guilty at trial; that the court-martial had three major errors and, had the errors not been made, would not have resulted in a felony; and that his defense of entrapment by the government was not considered. 

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

On 1 February 1983 he enlisted in the Regular Army in the rank of private first class/E-3 for a period of 3 years.  He successfully completed basic combat training and advanced individual training (AIT) in military occupational specialty 19D (Cavalry Scout) at Fort Knox, Kentucky.  Upon completion of AIT he was assigned to Fort Carson, Colorado. 

On 10 August 1983 he accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, for the wrongful use of marijuana.  The punishment imposed consisted of reduction to private/E-2, forfeiture of $150, and 14 days extra duty and restriction.

On 1 March 1984 he accepted NJP for failing to go to his appointed place of duty.  The punishment imposed consisted of reduction to private/E-1, forfeiture of 7 days pay, and 14 days extra duty and restriction.

On 4 September 1984 the applicant was promoted to private/E-2.

On 25 October 1984 he accepted NJP for being drunk on duty.  The punishment imposed consisted of forfeiture of $139 and 14 days extra duty and restriction.

On 2 April 1985 he was convicted by general court-martial (GCM) for the following offenses:

1.	Violation of the UCMJ, Article 112a, distribution of 6.57 grams
		of marijuana;
2.	Violation of the UCMJ, Article 112a, possession of 1.60 grams of marijuana; and
3.	Violation of the UCMJ, Article 134, assault consummated by a
battery.

The applicant pled guilty to the aforementioned charges and specifications.  He was sentenced to a dishonorable discharge, confinement for 16 months, forfeiture of all pay and allowances, and reduction to the grade of private/E-1.

On 26 June 1985 the appropriate authority approved the sentenced adjudged and ordered the sentence executed except for the part of the sentence extending to dishonorable discharge.  

On 18 December 1985 the applicant was released from confinement and placed on excess leave pending the appellate review of his dishonorable discharge.

On 26 March 1986, at appeal, the applicant alleged that he was substantially prejudiced by the failure of the convening authority to consider the actual results of trial before taking action on the sentence.  Specifically, the applicant asserted that he was prejudiced because the staff judge advocate advised the covening authority that he had been found guilty of possession of marijuana with intent to distribute, rather than simple possession of marijuana.  

On 26 March 1986 The Court of Military Review found that the applicant’s allegation of entrapment and other errors raised on appeal were without merit and affirmed the findings of guilty.  Notwithstanding the Court’s finding of no plain error in the general court-martial, the Court reassessed the applicant’s sentence based on the fact that the convening authority was not properly advised of the results of trial.  The Court affirmed only so much of the sentence as provided for a dishonorable discharge, confinement for 12 months, total forfeitures, and reduction to private/E-1.   

Notice of Court-Martial Order Correction, dated 26 March 1986, corrected the court-martial proceedings to reflect that the applicant was guilty of possession of 1.60 grams of marijuana.

On 11 February 1987 the appropriate authority ordered the dishonorable discharge duly executed.  Accordingly, on 25 February 1987 he was discharged, in absentia, after completing 3 years, 3 months, and 10 days active military service. 

AR 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, paragraph 3-11, provides that a soldier will be given a punitive discharge (BCD or DD) pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

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.  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’s contentions relate to evidentiary and procedural matters, which were finally and conclusively adjudicated in the court-martial appellate process, and furnish no basis for recharacterization of the discharge. 

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

___rgh___  __bje___  __jps____  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999034134	
SUFFIX		
RECON		
DATE BOARDED	20000212	
TYPE OF DISCHARGE	DD	
DATE OF DISCHARGE	19870225	
DISCHARGE AUTHORITY	AR 635-200 C3	
DISCHARGE REASON	105.0100.0000	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  	105.0600.0000	
 2.  	105.0008.0000	
 3.  	144.6803.0000	
 4.	144.9500.0000	
 5.		
 6.