| Mr. Carl W. S. Chun | Director | |
| Ms. Carolyn G. Wade | Analyst |
| Mr. Raymond V. O'Connor, Jr. | Chairperson | |
| Mr. Eric N. Andersen | Member | |
| Mr. Thomas E. O'Shaughnessy | Member |
APPLICANT REQUESTS: That the Army Board for Correction of Military Records (ABCMR) carefully review his case to determine if entrapment was involved in his receiving a Bad Conduct Discharge (BCD). In effect, the applicant is requesting that his court-martial conviction be set aside and his BCD be upgraded.
APPLICANT STATES: In effect, that he was entrapped into committing his misconduct because he did not approach the arresting officer, the arresting officer approached him and asked him if he could get him some marijuana.
In support of his application, the applicant submitted a statement in his own behalf.
EVIDENCE OF RECORD: The applicant's military records show:
He enlisted in the Regular Army on 1 December 1982 for a period of 4 years. He enlisted for the United States Army Training of Choice Enlistment Option and training in Military Occupational Specialty (MOS) 63J, Quartermaster Chemical Equipment Repairman. Following completion of all military training, the applicant was awarded MOS 63J and was assigned to Fort Riley, Kansas.
On 28 September 1984, the applicant was convicted by a general court-martial at Fort Riley of three specifications of wrongful distribution of marijuana on three separate occasions (23 May 1984, 25 June 1984, and 27 June 1984). The findings of guilty as to the charge and its specifications were based on the applicant’s pleas of guilty. He was sentenced to reduction in rank to private/E-1, confinement for 4 months, forfeiture of all pay for 4 months, and a BCD. On
3 December 1984, the adjudged sentence was approved, and ordered duly executed, except for the BCD. The applicant was confined at Fort Riley.
On 7 January 1985, the applicant, having completed his sentence to confinement, was placed on excess leave pending appellate review of his court-martial conviction.
On 20 February 1985, the United States Army Court of Military Review affirmed the approved findings of guilty and the sentence.
On 7 June 1985, the appellate review was completed, the sentence was affirmed, and the BCD was ordered to be executed.
On 17 June 1985, the applicant was discharged after completing 2 years, 3 months, and 6 days of active military service and accruing 162 days of lost time.
Army Regulation 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 BCD pursuant only to an approved sentence to a general court-martial or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed.
Court-martial convictions stand as adjudged or modified by appeal through the judiciary process. In accordance with Title 10, United States Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.
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 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. 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
_RVO___ __ENA __ __ENA __ DENY APPLICATION
| CASE ID | AR2001051580 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 20010927 |
| TYPE OF DISCHARGE | BCD |
| DATE OF DISCHARGE | 19850617 |
| DISCHARGE AUTHORITY | AR 635-200, c3 |
| DISCHARGE REASON | As a result of court-martial |
| BOARD DECISION | DENY |
| REVIEW AUTHORITY | Director |
| ISSUES 1. | 105.0600.0000 |
| 2. | 144.6800.0000 |
| 3. | 144.8505.0000 |
| 4. | |
| 5. | |
| 6. |
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