MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           27 April l999                  
	DOCKET NUMBER:   AC98-05878
				   AR1999015016

	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. Loren G. Harrell		Director	
	Mr. Richard H. Allen		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Raymond V. O’Connor, Jr.		Member	
	Mr. Curtis L. Greenway		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:  Clemency (upgrade of his bad conduct discharge (BCD)), reduction in his court-martial sentence and change in his “reenlistment” (reenlistment entry (RE)) code.

APPLICANT STATES:  In essence that the court-martial totally disregarded confessions of two witness; the statements by witnesses in his favor concerning his truthfulness were not believed by the military judge; that he was not charged with perjury although the judge said he was lying; that the prosecutor used fellow attorneys from his office to impeach favorable testimony given on behalf of the applicant, which was unfair; and that trial by court-martial only came after his promotion consideration to pay grade E-8 was stopped when his command initiated discharge proceedings for misconduct under the provisions of chapter l4, Army Regulation 635-200.  

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

The applicant had five prior periods of honorable service from 23 December 1975. He enlisted on 7 May 1991 for 5 years, in pay grade E-7.  His primary military occupational specialty (MOS) was MOS18B (Special Forces Weapons Sergeant).  He also had prior service in MOS 11B (Infantryman) and MOS 11C (Indirect Fire Infantryman).  He had overseas service in Korea and in Southwest Asia from August 1990 through March 1991.

On 24 September 1992, contrary to his plea, he was convicted by a special court-martial, at Fort Campbell, Kentucky, of wrongful use of cocaine between on or about 11 March and 17 March 1992.  He was sentenced to confinement for 
60 days (this included a reduction to pay grade E-1) and a BCD.

He served for 54 days in military confinement from 24 September through 
11 November 1992.  He was then placed on voluntary and involuntary excess leave, awaiting appellate review, from 17 November 1992 through 16 May 1994.

On 17 September 1993, the United States Army Court of Military Review affirmed his conviction and sentence.  On 1 April 1994, Special Court-Martial Order 40, Headquarters, US Army Armor Center and Fort Knox, Kentucky, announced that his conviction had been affirmed, that Article 71C, Uniform Code of Military Justice, having been complied with, that his BCD would be executed.  The order noted that he had served that portion of his sentence as applied to confinement.  

On l7 May 1994, the applicant was discharged with a BCD.  He was credited with l8 years, 3 months and 2 days creditable service and he had 54 days lost time (military confinement).  His RE code was RE-4.  His awards and decorations include the Bronze Star Medal, the Meritorious Service Medal (two awards), the Joint Services Achievement Medal, the Army Commendation Medal (three awards), the Army Achievement Medal (two awards), the Good Conduct Medal (five awards); the National Defense Service Medal, the Army Service Ribbon, the Noncommissioned Officer Professional Development Ribbon (Advanced Level), the Southwest Asia Service Medal with two bronze service stars, the Kuwait Liberation Medal, the Combat Infantryman Badge, the Expert Infantryman Badge, the Expert Qualification Badge-M-16 Rifle, the Parachutist Badge, the Air Assault Badge, the Special Forces Tab and the Tomb of the Unknown Soldier Badge.  

On 13 February 1998, the applicant personally appeared before the Army Discharge Review Board (ADRB).  That board granted him clemency by upgrading his BCD to a general discharge (GD), under honorable conditions.  However, that board did not change the reason for the discharge and the RE code remained the same.

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.  The sentence may be modified by the Board based upon a finding of clemency 

Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge.  Army Regulation 60l-2l0 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the US Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes, including Army RE codes.  The respective services also may issue periodic instructions to recruiting personnel for additional restrictions and changes in criteria for reenlistment of former service members, based on the needs of the armed service involved.

An RE code of RE-4 pertains to soldiers last separated from service with a nonwaivable disqualification.  Personnel separated with a less than fully honorable discharge have a nonwaivable disqualification (Table 4-2, Army Regulation 601-210).  

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, in this case, has failed to submit evidence that would satisfy the aforementioned requirement.

2.   Trial by court-martial was warranted by the gravity of the offense with which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations.

3.   The applicant’s contention relating 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.  The Board notes that the ADRB has granted clemency in upgrading the applicant’s BCD to a GD.  This Board is not inclined to grant further clemency.  The applicant’s abuse of illegal drugs reduced the quality of his service below that warranting a fully honorable discharge.

5.  The RE code assigned in the applicant’s case was appropriate. No basis for removal or waiver of the applicant’s disqualification for reenlistment purposes has been established.  

6.  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:

_RVO’C__  __JNS__  __CLG__  GRANT

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-05878/AR1999015016	
SUFFIX		
RECON		
DATE BOARDED	19990427	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19940517	
DISCHARGE AUTHORITY	AR635-200, C3 	
DISCHARGE REASON	A39.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	105.06	
2.	100.03	
3.	A91.05	
4.		
5.		
6.