| Mr. Carl W. S. Chun | Director | |
| Mr. Lee Cates | Analyst |
| Mr. Raymond V. O'Connor, Jr. | Chairperson | |
| Mr. Raymond J. Wagner | Member | |
| Ms. Karen Y. Fletcher | Member |
APPLICANT REQUESTS: That his dishonorable discharge (DD) be upgraded to Entry Level Separation (ELS) or Uncharacterized.
APPLICANT STATES: That he is requesting an upgrade to entry level because he desires to join another branch of the military. He indicates that he truly regrets and is remorseful of his behavior during his time served in the Army. Since his separation, he has gotten a grip on life and is trying to move forward and stay in a positive direction. His past holds back his future. He is asking the Board to take into consideration the merited service time he served and the unmerited disciplinary confinement time served after his ETS (expiration of his term of service). He repaid his indebtedness, physically, financially and mentally and has lived a clean faithful life.
EVIDENCE OF RECORD: The applicant's available military records show:
On 28 June 1989, he enlisted in the Army and reenlisted on 10 February 1993.
On 7 February 1995, in consonance with his pleas, he was convicted by a General Court-Martial of one specification of conspiracy to wrongfully distribute marijuana, and three specifications of wrongful distribution of marijuana. Although sentenced to 10 years confinement by the military judge, his sentence was reduced to a dishonorable discharge, confinement for 24 months, forfeiture of all pay and allowances, a $5,000.00 fine, and reduction to pay grade E-1 by pretrial agreement.
On 25 April 1996, General Court Martial Order Number 47, US Disciplinary Barracks, Fort Leavenworth, Kansas indicates his sentence was affirmed and that his DD will be executed.
On 10 May 1996, he was dishonorably discharged, in pay grade E-1, under Army Regulation 635-200, chapter 3, as a result of court-martial. His separation document indicates he had 5 years, 7 months and 9 days of creditable service and 458 days of lost time.
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 Army Board for Correction of Military Records is not empowered to change a discharge due to matters which should have been raised in the appellate process, 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. 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. He has not shown entitlement to an ELS or uncharacterized discharge, and clemency is not appropriate.
2. The applicant’s contention concerning his past service conduct has been noted; however, this contention is not sufficiently mitigating in his case to warrant a change of his discharge.
3. 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.
4. 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___ _KYF___ _RVO____ DENY APPLICATION
| CASE ID | AR2002076027 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 20020926 |
| TYPE OF DISCHARGE | |
| DATE OF DISCHARGE | |
| DISCHARGE AUTHORITY | |
| DISCHARGE REASON | |
| BOARD DECISION | DENY |
| REVIEW AUTHORITY | |
| ISSUES 1. | 110 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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