PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 3 July 2003
         DOCKET NUMBER: AR2003083411


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mrs. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor		Chairperson
Ms. Kathleen A. Newman		Member
Mr. Patrick H. McGann		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests that his DD Form 214 (Certificate of Release or Discharge from Active Duty) be amended to add the Ranger Tab and to change his Marksman Qualification Badge with Rifle bar to the Expert Qualification Badge with Rifle bar. He also requests that his bad conduct discharge be upgraded.

3. The applicant states that he was charged with possession of marijuana and pyrotechnics and theft of government munitions. He was found not guilty of theft of government munitions. The bad conduct discharge for the offenses he was found guilty of was extreme. His service as an airborne ranger with the 1st Battalion, 75th Infantry (Ranger) was considered exemplary. Even while pending appeals, he continued to perform training exercises and demonstrations as a member of the Ranger Battalion to include a representation of capabilities for the Secretary of Defense.

4. The applicant stated that, after his discharge, he went on to become a responsible citizen. He finished his college degree. He was a volunteer assistant scoutmaster [for the Boy Scouts]. He worked as a police patrolman. He completed training in Emergency First Responder, Hazardous Materials First Responder, and Accident Investigation. He was a member of the Volunteer Fire Department and Search and Rescue Team. He pursued a career in environmental consulting and engineering. He has held senior positions within the environmental, health, and safety fields of industry and communities. While his bad conduct discharge has not hampered his ability to have proud and rewarding careers, it continues to loom as a "skeleton in the closet.” It would be a grave injustice if he could not provide his services because of what many consider a minor infraction during a short period in what was otherwise a distinguished and honorable period of service. This is especially so as his marijuana use was closely linked to dealing with pain from injuries he sustained performing his duties as an airborne ranger. Plus, he never knew the pyrotechnics were in his possession.

5. As supporting evidence, the applicant provides extracts from his military personnel records, 8 letters of support dated around the time of his court-martial, and numerous certificates of training completed post-discharge.

6. The applicant’s military records show that he enlisted in the Regular Army on 2 August 1979. He completed basic training and advanced individual training and was awarded military occupational specialty 05B (Radio Operator). He completed basic airborne training.

7. Item 3 (Awards, Decorations, and Campaigns) of the applicant's DA Form 2-1 (Personnel Qualification Record) shows he qualified as expert with the M-16 rifle on 28 September 1979.

8. On 28 January 1980, the applicant was assigned to the 1st Battalion, 75th Infantry (Ranger), Hunter Army Airfield, GA.

9. On 8 January 1981, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for violating a lawful general regulation by having a .22 caliber rifle in his privately owned vehicle and by having a 9mm pistol in his barracks room.

10. The applicant completed ranger training and was awarded the Ranger Tab on Headquarters, U. S. Army Infantry Center Permanent Orders 88-111 dated 12 May 1981.

11. The applicant was promoted to Specialist Four, E-4 on 1 September 1981.

12. On 28 June 1982, the applicant was convicted by a general court-martial of possession of ammunition and explosives, value in excess of $100.00, and possession of marijuana. (He was found not guilty of stealing ammunition and explosives and not guilty of receiving stolen property.) He was sentenced to a bad conduct discharge.

13. Five witnesses (to include the battalion S-4, battalion training officer, and his platoon leader) testified on behalf of the applicant. All of them believed the applicant could be rehabilitated and most of them testified they would take him back as a member of their unit. An additional seven individuals signed a petition for clemency after the applicant's trial.

14. The report of trial contains a summary of the applicant's testimony. The summary indicated the applicant testified that the marijuana found during the 2 April 1982 health and welfare inspection belonged to him. He knew it was wrong to possess marijuana. The explosives found in his room were given to him by a soldier in another company. That soldier asked him to keep his (the other soldier's) rucksack because the other soldier's unit was going to have a health and welfare inspection and he had some items in the rucksack that he (the other soldier) did not want to be found. The applicant testified that he had no idea what was in the rucksack and he never looked in it.

15. On 14 October 1982, the applicant was placed on involuntary excess leave pending appellate review.

16. On 17 May 1983, the Army Court of Military Review affirmed the findings and the sentence.

17. On 25 October 1983, the U. S. Court of Military Appeals denied the applicant's petition for a grant of review.

18. On 15 November 1983, the applicant was discharged with a bad conduct discharge pursuant to his sentence by court-martial. He had completed 4 years, 3 months, and 14 days of creditable active service and had no lost time. His DD Form 214 shows he was awarded the Army Service Ribbon, the Marksman Qualification Badge with Rifle bar, and the Parachutist Badge.

19. The Manual for Courts-Martial, United States, 1984 edition, prescribed the maximum punishment for knowingly receiving, buying, or concealing stolen property, value in excess of $100.00, as a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years. It prescribed the maximum punishment for wrongful possession of less than 30 grams of marijuana as a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 15 years.

20. Title 10, U. S. Code, section 1552(f) states that, with respect to records of courts-martial tried or reviewed under the Uniform Code of Military Justice, the Board's action may extend only to action on the sentence of a court-martial for purposes of clemency.

21. Army Regulation 635-200 governs the separation of enlisted personnel. In pertinent part, it states that an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the soldier’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. A general discharge is a separation from the Army under honorable conditions. It is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

CONCLUSIONS:

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. In regards to his request to upgrade his discharge, the applicant has failed to submit evidence that would satisfy this requirement.

2. Trial by court-martial was warranted by the gravity of the offenses charged. The Board notes that one of the charges was similar to offenses for which the applicant accepted nonjudicial punishment the previous year.

3. It appears to the Board the jury did not believe the applicant when he testified he did not know ammunition and explosives were in the rucksack the other soldier gave to him. It appears to the Board the jury had reasonable doubts concerning the veracity of his testimony as a rational person would ask what the rucksack contained if told there was something (possibly something illegal to possess) in it one did not want discovered during an inspection.

4. The applicant's contention that his marijuana possession was related to pain he suffered from injuries received while an airborne ranger relates to matters of extenuation and mitigation which should have been brought up during the trial. The Board notes that there is no evidence to show the applicant mentioned this extenuation during his court proceedings. Regardless of his motivation to use marijuana, the Board concludes this information does not warrant upgrading his discharge.

5. The Board notes that the maximum punishment for knowingly receiving stolen property (value in excess of $100.00) was a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years. The maximum punishment for wrongful possession of less than 30 grams of marijuana was a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 15 years. While the sentence to a bad conduct discharge might appear excessive to some, it was far more lenient than the maximum possible punishments.

6. The Board concludes that 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.

7. While the Board has taken cognizance of the applicant's good post-service conduct, that factor does not warrant granting the relief requested concerning upgrading his discharge. The applicant may want to consider applying to the Office of the Pardon Attorney, Department of Justice, for a pardon.

8. There is evidence of record to show the applicant was awarded the Ranger Tab and met the eligibility criteria for award of the Expert Qualification Badge with Rifle Bar. His DD Form 214 should be amended to reflect these awards.

9. In view of the foregoing, the applicant’s records should be corrected but only as recommended below.

RECOMMENDATION:

1. That the applicant's DD Form 214 be amended to delete the Marksman Qualification Badge with Rifle bar and to add the Ranger Tab and the Expert Qualification Badge with Rifle bar.

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2. That so much of the application as pertains to upgrading the applicant's bad conduct discharge be denied.

BOARD VOTE:

__rvo___ __kan___ __phm___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ___Raymond V. O'Connor
                  CHAIRPERSON

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INDEX

CASE ID	AR2003083411
SUFFIX
RECON
DATE BOARDED	20030703
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY	Mr. Schneider
ISSUES 1.	105.01
2.
3.
4.
5.
6.