MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 10 October 2002
         DOCKET NUMBER: AR2002074257

         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. Raymond J. Wagner		Chairperson
Mr. Roger W. Able		Member
Mr. John T. Meixell		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 clemency in the form of a general discharge be granted.

APPLICANT STATES: In effect, that he was discharged because of his drug addiction. He contends that he did not receive the justice he deserved and that he should have been given a rehabilitation transfer. He states that his record shows that he was busted to E-1 before he had a chance to go to court. He goes on to state that he currently helps others deal with the problem of addiction, that he graduated from a substance abuse program in 1999, and that he continues his involvement in the substance abuse program. He asks the Board to consider that he takes responsibility for his actions and that he has been punished for the crime. In support of his application, he submits an undated letter of explanation; five character reference letters; and a brochure on the Triangle Residential Options for Substance Abusers.

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

The applicant enlisted on 5 April 1977. He successfully completed basic combat training and advanced individual training at Fort Sill, Oklahoma, in military occupational specialty 13B (cannon crewman).

On 14 May 1979, nonjudicial punishment was imposed against the applicant for being disrespectful in language toward a superior noncommissioned officer. His punishment consisted of a reduction to E-3 (suspended), a forfeiture of pay and extra duty.

On 21 February 1984, nonjudicial punishment was imposed against the applicant for assaulting his wife. His punishment consisted of a reduction to E-4 (suspended for 90 days).

On 12 September 1985, nonjudicial punishment was imposed against the applicant for possessing and using marijuana. His punishment consisted of a reduction to E-5, a forfeiture of pay and restriction.

The applicant’s records show that he was enrolled in Track II of the Alcohol and Drug Abuse Prevention and Control Program on 25 September 1985 for drug (marijuana) and alcohol abuse. He completed the program in February 1986; however, his progress was rated as unsatisfactory and his counselor stated, “lacks motivation toward treatment.”

On 15 January 1986, nonjudicial punishment was imposed against the applicant for failing to go to his appointed place of duty (three specifications). His punishment consisted of a reduction to E-4 and a forfeiture of pay.

On 21 February 1986, nonjudicial punishment was imposed against the applicant for drunk driving and as a result of overindulgence in intoxicating liquor or drugs for being incapacitated for the proper performance of his duties. His punishment consisted of a reduction to E-1, extra duty and restriction.

There is no indication in the applicant’s service personnel records that he requested a rehabilitative transfer. There also is no evidence that the applicant’s chain of command requested a rehabilitative transfer or believed that it was appropriate in this case.

On 24 April 1986, the applicant was convicted pursuant to his pleas by a general court-martial of using hashish, distributing hashish (two specifications) and making a false statement. He was sentenced to be discharged with a dishonorable discharge, forfeiture of all pay and allowances and confinement for three years. On 3 June 1986, the convening authority approved only so much of the sentence as provides for confinement for 16 months, forfeiture of all pay and allowances and a dishonorable discharge.

On 20 August 1986, the United States Army Court of Military Review affirmed the findings of guilty and the sentence. The dishonorable discharge was ordered executed on 2 December 1986.

On 27 October 1986, the convening authority approved a summary court-martial conviction for wrongful possession of an alcoholic beverage.

Accordingly, the applicant was discharged with a dishonorable discharge on
18 May 1987 under the provisions of Army Regulation 635-200, chapter 3, as a result of court-martial. He had served 9 years and 15 days of total active service with 389 days of lost time due to confinement.

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 dishonorable discharge pursuant only to an approved sentence of a general 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 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.

Army Regulation 27-10 (Military Justice), in pertinent part, states the applicable policies for nonjudicial punishment. The regulation states that nonjudicial punishment may be imposed to correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures; preserve a soldier’s record of service from unnecessary stigma by record of court-martial conviction; or further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial. All Article 15 actions, including notification, acknowledgment, imposition, filing determinations, appeal, action on appeal, or any other action taken prior to action being taken on an appeal, except summarized proceedings will be recorded on DA Form 2627. The regulation also states that absent compelling evidence, a properly completed, valid DA Form 2627 will not be removed from a soldier’s record.

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 Board considered the applicant’s contention that he should have received a rehabilitative transfer. There is no evidence that the applicant requested such a transfer or that the chain of command determined such a transfer was warranted. Clearly, the chain of command’s use of nonjudicial punishments in this case demonstrated efforts to correct, educate, and reform the applicant and were rehabilitative in nature. Also, the enrollment of the applicant in Track II was a rehabilitative measure to deal with his drug and alcohol abuse. Contrary to the applicant’s contention, the Board concluded that the chain of command in this case took proper actions to rehabilitate the applicant.

2. The applicant’s contention that he was reduced to E-1 before he had a chance to go to court is supported by the evidence of record. His records show that two months prior to his general court-martial, nonjudicial punishment was imposed against the applicant and he was reduced to E-1 on 21 February 1986 for his misconduct.

3. The Board also considered the applicant’s contentions regarding his post service achievements. 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.

4. 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. The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

5. 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.

6. The Board reviewed the applicant’s record of service which included five nonjudicial punishments and one general court-martial conviction for using and distributing hashish and making a false statement and determined that his military record was not satisfactory. Therefore, the Board determined that clemency in the form of a general discharge was not warranted in this case.

7. 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.

8. 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

RJW___ RWA_____ JTM_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002074257
SUFFIX
RECON
DATE BOARDED	20021010
TYPE OF DISCHARGE	DD
DATE OF DISCHARGE	19870518
DISCHARGE AUTHORITY	AR 635-200 Chapter 3
DISCHARGE REASON	As a result of court-martial
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.0200
2.
3.
4.
5.
6.