RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        4 October 2005
      DOCKET NUMBER:  AR20040007304


      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             |
|     |Mr. Eric S. Moore                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Mark D. Manning               |     |Chairperson          |
|     |Mr. Larry C. Bergquist            |     |Member               |
|     |Ms. Carmen Duncan                 |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his bad conduct discharge (BCD)
be upgraded to an honorable discharge.

2.  The applicant states that the evidence failed to prove beyond a
reasonable doubt that the defense of entrapment didn't apply in his case.
He concludes by stating that he has successfully completed parole, a 32
hour alcohol and drug prevention control program, a 32 hour course in
behavior management and coping strategies, and a 2 day class on the Mandt
System [a physical restraint technique which emphasizes "de-escalation"].

3.  The applicant provides copies of his DD Form 214 (Certificate of
Release or Discharge from Active Duty, course completion certificates for
the Behavior Management & Coping Strategies, the Mandt System, Alcohol and
Drug Prevention Control Program, certificate of release from parole, his
discharge orders, his court-martial orders and a two page statement.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 28 December 1994 for a
period of 3 years.  He served as a wheeled vehicle repairman, and was
honorably discharged on 19 June 1997.  He reenlisted on 20 June 1997 for a
period of       6 years.

2.  On 29 October 1999, a general court-martial (GCM) found the applicant
guilty, contrary to his pleas, of violating Article 112a of the Uniform
Code of Military Justice (UCMJ) by wrongful distribution of marijuana and
wrongful distribution of cocaine and violating Article 80, UCMJ by
attempted conspiracy.

3.  The resultant sentence included reduction to the rank of private one
(PV1), forfeiture of all pay and allowance, confinement for 2 years and a
BCD.

4.  The court-martial convening authority approved the findings and the
sentence. All but the BCD portion of the sentence was ordered executed.

5.  On 1 May 2001, after consultation with his appellate defense counsel,
the applicant withdrew his case from appellate review.  A judge advocate
reviewed the case, recommended a minor correction to the promulgating order
and pointed out that the court-martial panel had been properly instructed
on the issue of entrapment.
6.  On 18 June 2001, Article 64c of the Uniform Code of Military Justice
having been complied with, General Court-Martial Order 21, issued by
Headquarters, Fort Carson, Colorado approved the sentence and directed that
the BCD portion of the sentence be executed.  On 13 September 2002, the
applicant was discharged accordingly.

7.  His DD Form 214 shows he completed a total of 4 years, 9 months and
   15 days of active service.  His DD Form 214 also shows he was on excess
leave from 29 October 2001 through 12 September 2002, which period was
creditable for all purposes except pay and allowances.

8.  Title 10, U.S. Code, section 1552 (f), prohibits the ABCMR from
correcting records of courts-martial and administrative records pertaining
to court-martial records tried or reviewed under the Uniform Code or
Military Justice, except for corrections directed by reviewing authorities
or clemency on the sentence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his bad conduct discharge should be
upgraded to an honorable or general discharge.

2.  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.

3.  By law, any redress by this Board of the finality of a court-martial
conviction is prohibited.  The Board is only empowered to change a
discharge if clemency is determined to be appropriate to moderate the
severity of the sentence imposed.  In light of the seriousness of the
offenses for which he was convicted, and absent the presentation of any
significant mitigating factors, the applicant’s overall record of service
does not support clemency in this case.

4.  Notwithstanding the applicant's contention about the defense of
entrapment, the members of the panel were properly instructed on the law
and decided that the applicant had not been entrapped.  These matters were
finally and conclusively adjudicated in the court-martial process, and
furnish no basis for recharacterization of the discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___mdm_  ___cd ___  ___lcb __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented does not demonstrate the
existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.




                                  _____Mark D. Manning_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040007304                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/10/04                              |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |2002/09/13                              |
|DISCHARGE AUTHORITY     |AR 635-200 CHAPTER 3                    |
|DISCHARGE REASON        |COURT-MARTIAL, OTHER                    |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |MR CHUN                                 |
|ISSUES         1.       |105.0100                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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