MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 28 August 2003
         DOCKET NUMBER: AR2002082519

         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
Mrs. Carolyn Wade		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Thomas Lanyi		Member
Mr. Harry B. Oberg		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: That his dishonorable discharge (DD) be upgraded to a general or honorable discharge.

APPLICANT STATES: In effect, that his discharge should be upgraded based upon the following mitigating factors: 1) his awards and decorations, 2) combat service, 3) prior honorable service, 4) good citizen since discharge, 5) minor offense of the court-martial, 6) adverse consequences of the discharge, and 7) command not following discharge regulations. He states the judge called for a mistrial, but the prosecutor and defense counsel decided to continue with the court-martial.

In support of his application, he submits a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), personnel record, copy of prior honorable discharge, and court-martial order.

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

He enlisted in the Regular Army on 15 August 1966 for a period of 3 years. Following completion of all military training, the applicant was awarded military occupational specialty 61A, Seaman, and was assigned to Fort Belvoir, Virginia.

The applicant served from 15 August 1966 to 11 May 1984 through a series of continuous reenlistments.

On 11 May 1984, a general court-martial convicted the applicant pursuant to his plea of one specification of wrongfully distributing about 1.0 gram of cocaine. He was sentenced to a dishonorable discharge, confinement at hard labor for 3 years, total forfeiture of all pay and allowances, and reduction to private/E-1. On 26 June 1984, the convening authority approved the sentence as adjudged. The record of trial was forwarded to The Judge Advocate General of the Army for review by a Court of Military Review. Pending completion of appellate review, the applicant was confined to the United States Army Disciplinary Barracks (USDB) Fort Leavenworth, Kansas.

On 19 November 1984, the Court of Military Review set aside the 26 June 1984 action of the convening authority. The record of trial was returned to The Judge Advocate General for a new review and action by the same or a different convening authority. Having completed another review, the sentence was approved on 1 February 1985. The United States Court of Military Review affirmed the findings of guilty and the sentence on 8 November 1985. On
16 June 1986, the United States Court of Military Appeals denied the applicant's petition for grant of review.

The Army Clemency Board approved the applicant’s released on parole on 15 October 1985. Accordingly, on 3 January 1986, he was released and on 1 July 1986, the sentence was executed.

On 8 August 1986, the applicant was discharged under the provisions of Army Regulation 635-200 as a result of court-martial with a DD. He was credited with a total time in service of 17 years, 8 months, and 26 days. He had 5 days’ lost time prior to expiration of term of service (ETS) and 723 days’ lost time subsequent to normal ETS.

On 10 March 1987, the Secretary of the Army directed suspension of the applicant’s parole and ordered a preliminary review. On 17 September 1987, the applicant’s parole was revoked for violating condition number 10 of his Parole Agreement by testing positive for drug use. However, on 18 September 1987 the Board voted to grant the applicant reparole.

On 20 September 1988, the Secretary of the Army directed suspension of the applicant’s parole and ordered a preliminary review. On 27 March 1989, the applicant was informed that the Army Clemency and Parole Board (AC&PB) had reviewed his case on 14 March 1989 and revoked his parole. The AC&PB concluded that the applicant had violated conditions number 9 and 10 of his Parole Agreement by testing positive for marijuana on two different occasions. The AC&PB noted that this was his second time on parole and felt that he was unable to take parole seriously.

Court-martial convictions stand as adjudged or modified by appeal through the judicial 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. The Board 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. The Board notes the applicant’s contentions that his awards and decorations, combat service, prior honorable service, and his post service conduct are mitigating factors for upgrading his discharge. The Board carefully reviewed all of the applicant’s faithful and honorable service as well as his misconduct. The Board determined that his misconduct was pervasive and adversely affected the quality of his service, brought discredit on the Army, and was prejudicial to good order and discipline. The applicant’s misconduct clearly diminished the quality of his service below that meriting a general or fully honorable discharge.

2. The evidence of record does not support the applicant’s contentions that his court martial offense was minor or that his chain of command failed to follow discharge regulations and he has not provided any evidence to support his contentions. Further, there is no evidence to support the applicant’s contention that the judge declared a mistrial, but the prosecutor and defense counsel decided to proceed with the court-martial.

3. The Board notes the applicant’s contentions that his court-martial offense was minor and that he continues to suffer the consequences of the discharge. However, the applicant was court-martialed for distributing about 1.0 gram of cocaine and the Board considers the distribution of drugs a serious offense.

4. Trial by court-martial was warranted by the gravity of the offense 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.

5. The evidence of record clearly shows that the applicant was adjudged guilty by court-martial and that the convening authority approved the sentence. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed. The Board finds no reason to grant clemency in this case.

6. 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.

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

__aao___ __tl____ __hbo___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002082519
SUFFIX
RECON
DATE BOARDED	20030828
TYPE OF DISCHARGE	DD
DATE OF DISCHARGE	19860808
DISCHARGE AUTHORITY	AR 635-200, Chap 3
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	106.0008
2.
3.
4.
5.
6.