MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 6 August 2002
         DOCKET NUMBER: AR2002072184

         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
Mr. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Mr. Luther L. Santiful		Chairperson
Ms. Paula Mokulis		Member
Mr. Donald P. Hupman		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)

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APPLICANT REQUESTS: In effect, that his special court-martial conviction be set aside, that his bad conduct discharge (BCD) be upgraded to an honorable discharge, and that his Federal Bureau of Investigation (FBI) records be cleared of the conviction.

APPLICANT STATES: In effect, that there was no concrete evidence presented to show that he possessed or sold drugs and that he was convicted by the testimony of three individuals who lied at the trial by court-martial. He further states that he was not adequately represented by counsel, as evidenced by his failure to question discrepancies in testimony during the trial. He also states that his conviction by a special court-martial was an attempt to ensure that he was convicted because he had demanded a trial by court-martial for other offenses that he did not commit and the drug charges were fabricated to ensure his conviction. In support of his application he submits various parts of his record of trial.

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

He enlisted on 29 July 1976 for a period of 3 years and training as a central office switchboard operator. At the time of his enlistment he indicated with a check mark in the “Yes” column, as a response on his application for enlistment, to the question “Have you ever been involved in the use, purchase, possession or sale of marijuana, LSD or any other harmful habit-forming drugs and/or chemicals, except as prescribed by a licensed physician.”

He completed his training and was transferred to Korea on 3 April 1977. He was advanced to the pay grade of E-4 on 14 September 1977. He completed his tour in Korea on 5 March 1978 and was transferred to Fort Huachuca, Arizona, where he reenlisted on 8 March 1979, for a period of 3 years and a selective reenlistment bonus.

On 5 October 1978, he was arrested by military policemen for the wrongful possession of marijuana. Although the record is unclear as to the outcome, a commander’s report of action indicates that the applicant was enrolled in an drug rehabilitation program and was going to be offered nonjudicial punishment (NJP) for the offense.

On 15 January 1980, he was arrested by civil authorities and charged with sexual assault, armed robbery, theft and kidnapping. The final outcome is not present in the available records; however, the applicant was not charged with lost time for his confinement and therefore it appears that he was not convicted.

He was transferred back to Korea on 11 January 1981. On 25 February 1982, NJP was imposed against him for a ration control violation. His punishment consisted of a forfeiture of pay, extra duty and restriction.
On 15 September 1981, a Criminal Investigation Division (CID) investigation was initiated to determine if the applicant was involved in the possession and sale of marijuana. The investigation was concluded on 2 December 1981 and disclosed that the applicant had conspired with another soldier and sold a total of 145.94 grams of marijuana.

On 28 October 1981, a CID investigation was conducted in regards to allegations that the applicant had communicated a threat and assaulted a noncommissioned officer.

On 17 November 1981, his commander notified him that he was considering whether he should impose NJP against the applicant for being disrespectful towards a noncommissioned officer. The applicant demanded trial by court-martial on 23 November 1981.

On 25 March 1982, the applicant was convicted by a special court-martial of two specifications of wrongful possession and four specifications of wrongful transfer of marijuana. He was found not guilty of the charges of communicating a threat to a noncommissioned officer and disobeying a lawful order of a commissioned officer. He was sentenced to confinement at hard labor for 6 months, reduction to the pay grade of E-1, a forfeiture of pay and a BCD. The findings and sentence were approved on 17 June 1982. Meanwhile, the applicant was transferred to Fort Bragg, North Carolina, to serve his confinement.

On 28 October 1982, NJP was imposed against him for being AWOL from the personnel control facility from 21 October to 26 October 1982. His punishment consisted of a forfeiture of pay (suspended until 26 November 1982). The applicant was placed on excess leave on 11 December 1982.

On 12 August 1983, the United States Army Court of Military Review affirmed the findings and sentence as approved by the court-martial convening authority.

On 10 May 1984, he was discharged pursuant to a court-martial conviction. He had served 7 years and 4 months of total active service and had 208 days of lost time due to AWOL and confinement.

He applied to the Army Discharge Review Board (ADRB) on 1 November 1983 requesting that his discharge be upgraded to honorable and he cited essentially the same reasons as he has to this Board as the basis for upgrading his discharge. The ADRB unanimously denied his application on 11 April 1985.

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 of a general or special court-martial. The appellate review must be completed and the affirmed sentence duly executed.

Court-martial convictions stand 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 Army Board for Correction of Military Records 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 modify 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. 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.

2. The type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case.

3. The applicant’s contentions and supporting documents have been noted by the Board. However, they are not sufficiently mitigating to warrant relief when compared to the seriousness of his offense and his overall undistinguished record of service.

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 this 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

__ls ____ ___pm__ __dh____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002072184
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/08/06
TYPE OF DISCHARGE	BCD
DATE OF DISCHARGE	1984/10/05
DISCHARGE AUTHORITY	BCD/SPCM
DISCHARGE REASON	COURT-MARTIAL
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 675	144.6800/A68.00
2.
3.
4.
5.
6.