MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           29 April 2003                    
	DOCKET NUMBER:   AR2002079765

	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. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone 		Chairperson	
	Mr. Thomas Lanyi 		Member	
	Mr. Bernard P. Ingold 		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:  In effect, that clemency in the form of an honorable discharge be granted.  

APPLICANT STATES:  In effect, that he had a clean military record prior to his general court-martial, that he was a first time offender and that he was not given a second chance to make amends for his mistake.  He goes on to state that he never received an Article 15 or any type of rehabilitation, that he does not feel his appointed counsel had his best interest at heart, that he was hurried through a speedy trial and then sent to the stockade and thrown out of the military.  He further states that he needs his discharge upgraded so he can continue his career as a law enforcement officer.    

In an undated letter of explanation, the applicant accepts responsibility for his actions, he describes his military career and also acknowledges being young, immature and irresponsible at the time in question.  He states that he used marijuana and hashish to be a part of the barracks crowd and the reason he borrowed the money from the Post Office was due to financial problems.  After his discharge from the Army, he opened his own martial arts studio and applied for a position as a police officer in Florida.  He admits that he omitted answering the questions about his military background on the application; however, a check was done and he was hired by the police department on 7 October 1987.  He contends that a former girlfriend informed the police department about his troubles in the military and he was fired on 19 February 1999.   

In support of his application, he submits an undated letter of explanation; eight character reference letters from his pastor, mother, sister and friends; and numerous educational and employment certificates.     

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

The applicant enlisted on 13 September 1977 for a period of 3 years.  He successfully completed basic combat training and advanced individual training and was transferred to Germany for duty as an administrative specialist.  The applicant was honorably discharged on 21 May 1980 for immediate reenlistment. He reenlisted on 22 May 1980 for a period of 3 years and returned to the United States on 8 September 1980.  The applicant was transferred to Germany on 
16 August 1982 for duty as an administrative specialist. 

On 29 November 1983, the applicant was convicted by a general court-martial of wrongful appropriation of U.S. currency in the amount of $825.00, the property of the U.S. Government; possession of various amounts of marijuana in the hashish form, with intent to distribute; and distribution of various amounts of marijuana in the hashish form.  He was sentenced to be reduced to E-1, to forfeit all pay and allowances, to be confined at hard labor for 9 months and to be discharged with a bad conduct discharge.  On 13 February 1984, the convening authority approved the sentence.

On 27 February 1985, the United States Army Court of Military Review set aside the convening authority's action, dated 13 February 1984.  The record of trial was returned to The Judge Advocate General for a new review and action by a different convening authority.

On 10 July 1985, the new convening authority approved the sentence.      

On 21 February 1986, the United States Army Court of Military Review set aside the finding of guilty of Specification 1 of Charge II (possession of various amounts of marijuana in the hashish form, with intent to distribute) and dismissed that specification.  The remaining findings of guilty and the sentence were affirmed.  

The bad conduct discharge was ordered executed on 2 February 1987.

Accordingly, the applicant was discharged with a bad conduct discharge on 
17 February 1987 under the provisions of Army Regulation 635-200, chapter 3, as a result of a court-martial.  He had served 8 years, 10 months and 12 days of total active service with 203 days of confinement (29 November 1983 to 18 June 1984) and 973 days excess leave (20 June 1984 to 17 February 1987).

Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Paragraph 3-11 of this regulation states that a soldier will be given a bad conduct discharge 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. 

Section 1552(f), Title 10, United States Code states that the ABCMR can only review records of court-martial and related administrative records to correct a record to accurately reflect action taken by reviewing authorities under the Uniform Code of Military Justice (UCMJ) or to take clemency action.

Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

Army Regulation 635-200, paragraph 3-7, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently 
meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the soldier’s separation specifically allows such characterization.

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.  The evidence of record does not support the applicant's contention that he was young, immature and irresponsible at the time in question.  Evidence of record shows that the applicant was 25 years old at the time of his offenses and that he had completed almost 6 years of military service. 

2.  The Board noted the applicant's post service accomplishments and achievements as evidenced by the educational and employment certificates provided with his application.  The Board also considered the character reference letters provided in support of the applicant’s claim.  However, good post service conduct alone is not a basis for upgrading a discharge.  

3.  The Board also noted the applicant had served a total of 8 years, 10 months and 12 days of active service at the time of his discharge.

4.  The Board reviewed the applicant’s record of service which included one general court-martial conviction for wrongful appropriation of $825.00 and distribution of various amounts of marijuana in the hashish form and determined that his quality of service did not meet the standards of acceptable conduct and performance for Army personnel.  Therefore, the Board determined that clemency in the form of an honorable discharge was not warranted in this case.

5.  The Board also determined that the seriousness of the offenses for which the applicant received a general court-martial conviction were too serious to grant clemency in the form of a general discharge.

6.  The applicant’s administrative separation was accomplished in compliance with applicable regulations.  

7.  The applicant has failed to show through the evidence submitted with his application or the evidence of record that the actions taken in his case were in error or unjust.  

8.  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 this requirement.

9.  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

JNS____  TL______  BPI_____  DENY APPLICATION

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

INDEX

CASE ID	AR2002079765	
SUFFIX		
RECON		
DATE BOARDED	20030429	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	19870217	
DISCHARGE AUTHORITY	AR 635-200, chapter 3	
DISCHARGE REASON	As a result of a general court-martial	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.0200	
2.		
3.		
4.		
5.		
6.