MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 17 June 2003
         DOCKET NUMBER: AR2002078721

         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. Luis Almodova		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Hubert O. Fry, Jr.		Member
Ms. Marla J. N. Troup		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 BCD (Bad Conduct Discharge) be upgraded to Honorable.

APPLICANT STATES: In effect, that he was court-martialed for possession of one marijuana cigarette and sentenced to one year in prison and a BCD while he was at Brooke Army Medical Center in San Antonio, Texas. He adds that the severity of the punishment was, in his belief, too severe and unwarranted. He believes that it [the severity of the sentence imposed] had a lot to do because it happened in Texas.

The applicant has submitted no evidence in support of his request. The applicant states that he does not have any of his discharge or other papers. He has lost all of them.

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

The applicant's military records were lost or destroyed in the National Personnel Records Center fire of 1973. Information herein was obtained from the record of his trial by court-martial and from reconstructed personnel records.

The applicant enlisted in the Regular Army for 3 years on 17 May 1957. Following completion of basic combat training at Fort Chaffee, Arkansas, he was sent to the US Army Medical Training Center at Fort Sam Houston, Texas, for advanced training in military occupational specialty (MOS) 921.10 - Physical Therapy Specialist.

On 11 November 1957, the applicant was taken into custody by an agent of the 85^th Criminal Investigation Division for suspicion of possessing marijuana. He was released to his unit on 14 November 1957.

On 27 January 1958, the applicant was arraigned and tried by a general court-martial. On 30 January 1958, the applicant was convicted of, "wrongfully having in his possession .248 grams, more or less, of marijuana." He was sentenced to be discharged from the service with a bad conduct discharge, to forfeit all pay and allowances, and to be confined at hard labor for 3 months. Results of the trial and the sentence were announced in General Court-Martial Order Number 9, published by Headquarters, Fourth United States Army, dated 20 February 1958. The sentence was approved; but, that portion adjudging a bad conduct discharge was suspended until the accused was released from confinement or until completion of appellate review, whichever was the later date.

On 14 April 1958, the applicant was restored to duty, subject to final disposition of the case upon completion of appellate review, in compliance with General

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Court-Martial Order Number 17, published by Headquarters, Fourth United
States Army, dated 14 April 1958. The applicant had served the period of confinement adjudged by the general court-martial on 30 January 1958.

On 20 June 1958, the Fourth United States Army published General Orders Number 29 and announced that the sentence that had earlier been imposed on the applicant on 30 January 1958 was affirmed, that Article 71c had been complied with and ordered the sentence to be duly executed. It confirmed that the sentence to confinement had been served.

On 25 June 1958, Headquarters, Fort Sam Houston, published Special Orders Number 125, Paragraph 4. These orders released the applicant from assignment and duty with the Special Processing Detachment, US Army Garrison, and ordered his discharge with an Undesirable Discharge effective
26 June 1958 under the provisions of Army Regulation 635-204. This same order specifies that the applicant would be issued an SPN (Separation Program Number) of 292. SPN 292 was applied when separation was, "as a result of court-martial for other than desertion."

The applicant was discharged on 26 June 1958 in the rank and pay grade, Private, E-1, under the provisions of Army Regulation 635-204. The applicant’s record documents that the highest permanent rank and pay grade that he held on active duty were Private, pay grade E-2. The record contains no documented acts of valor, achievement, or service warranting special recognition.

On 24 June 1976, the applicant was provided a GSA Form 6954, Certification of Military Service. On 17 November 1993, the applicant was provided a NA Form 13038, Certification of Military Service. These forms were issued in the absence of a copy of the actual Report of Separation, or its equivalent. These documents serve as verification of military service and can be used for any official purpose. These certificates show the same information, the applicant enlisted in the Regular Army on 17 May 1957 and was discharged with an Undesirable Discharge on 26 June 1958 in the rank of Private.

Due to the nature and the gravity of the drug-related charge that the applicant was tried and convicted of by general court-martial, which led to his separation from the Army, a member of the staff asked for a copy of the applicant's Federal Bureau of Investigation (FBI) Record, on 9 June 2003. The applicant's FBI Record was received on 10 June 2003.

Army Regulation 635-204 provided the policy for discharge of enlisted personnel pursuant only to approved sentences of a general court-martial empowered to impose a dishonorable discharge.

Army Regulation 635-200, then in effect provided for the discharge of enlisted personnel upon expiration of term of enlistment and set forth the general provisions governing the release from active duty of enlisted and inducted persons prior to expiration of their terms of service under the regulations listed in paragraph 13. This paragraph included Army Regulation 635-204.

The Manual for Courts-Martial, United States, dated 1951, Chapter XXV,
contains a Table of Maximum Punishments. The maximum punishment that could be imposed on an accused for having, drugs, habit forming, or marijuana in their possession was a dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor not to exceed 5 years.

Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. Whenever there is doubt, it is to be resolved in favor of the individual.

Title 10, United States Code, section 1552, as amended does not permit any redress by this Board which would disturb the finality of a court-martial conviction. The Board is empowered to address the punishment and/or the characterization of service resulting from a court-martial conviction. The Board may elect to change the punishment and/or the characterization of service 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 serious offense with which he was charged, possession of drugs.

3. Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterized the misconduct for which the applicant was convicted.

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4. There is no evidence in the available records to demonstrate that the sentence imposed was related to the geographical area at which the violation of the Uniform Code of Military Justice took place, where the trial was held, and where the sentence was imposed, as the applicant alleges.

5. The applicant's record, compiled and maintained by the Federal Bureau of Investigation (FBI), contains an extensive criminal history of violation of laws, arrests, and convictions, related to controlled substances, since his separation from military service.

6. After a thorough review of the applicant’s record, the Board found no cause for clemency and an insufficient basis upon which to base an upgrade of his discharge to honorable.

7. 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

__fne___ __hof___ _mjnt___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002078721
SUFFIX
RECON
DATE BOARDED	20030617
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	19580626
DISCHARGE AUTHORITY	AR 635-204
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	105.0000
2.	105.0100
3.
4.
5.
6.