MEMORANDUM OF CONSIDERATION
IN THE CASE OF:
BOARD DATE: 14 October 1998
DOCKET NUMBER: AC97-06100
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.
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 his bad conduct discharge be upgraded to an honorable or general discharge.
APPLICANT STATES: In effect, that while in Vietnam drugs were rampant and that he made bad choices in his friends who ultimately got him into trouble and he had to pay it. He notes that he has been employed by the United States Virgin Island Department of Justice as a correction officer and firearms instructor since 1979. The applicant states he realizes he made a mistake but that he has paid for it. Included with his application is a statement from the Justice Department confirming the applicants employment since 1979.
EVIDENCE OF RECORD: The applicant's military records show:
He entered active duty on 19 August 1969 at the age of 19 with 12 years of formal education. He was assigned to Vietnam as a gunner between April 1970 and March 1971 where he was awarded several personal decorations for service and achievement, including an Army Commendation Medal with V device.
Following his tour of duty in Vietnam he was assigned to Fort Bragg, North Carolina and in 1972 pled guilty to possession and selling heroin at his general court-martial. His punishment included a dishonorable discharge, forfeiture of pay, reduction to pay grade E-1 and confinement at hard labor for three years. In August 1972 the Secretary of the Army remitted confinement in excess of two years and directed that the dishonorable discharge be changed to a bad conduct discharge.
His discharge was executed on 11 December 1972 and on 15 January 1973 he was granted parole.
During his clemency and parole hearing the applicant indicated that he never used cocaine but did use marijuana while in Vietnam.
The table of maximum punishments notes that an individual convicted of possessing and selling heroin could receive a dishonorable discharge, 30 years confinement, total forfeiture and reduction to E-1.
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 applicants separation was accomplished in accordance with applicable laws and regulations with no evidence of procedural error which would tend to jeopardize his rights.
2. Trial by court-martial was warranted by the gravity of the offenses charged. The discharge appropriately characterizes the misconduct for which the applicant was convicted and the Board notes that the applicant already received leniency when his discharge was changed from dishonorable to bad conduct and his sentence reduced.
3. While the Board notes the applicant has been a productive member of society since at least 1979, which is certainly noteworthy, it is not a sufficient basis to warrant a recharacterization of his military service to general or honorable, considering the seriousness of his offense.
4. 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.
5. 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___ __EMW__ __RWG__ DENY APPLICATION
Loren G. Harrell
Director
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