RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           1 December 2005
      DOCKET NUMBER:  AR20050005917


      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             |
|     |Ms. Wanda L. Waller               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Meixell                  |     |Chairperson          |
|     |Ms. Maribeth Love                 |     |Member               |
|     |Mr. Richard Sayre                 |     |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 clemency in the form of a
discharge upgrade be granted.

2.  In an appeal to the Board of Veterans’ Appeals of the Department of
Veterans Affairs (DVA), the applicant states, in effect, he has bettered
himself since his discharge through education, community service, and being
a good citizen.  He also states he was set up by two Soldiers.  He contends
he did not use drugs and the marijuana was placed in his cigarette by one
of the Soldiers.

3.  The applicant provides an appeal to the Board of Veterans’ Appeals and
three certificates of appreciation and training.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted on 3 May 1977 for a period of 4 years.  He
served as a light wheel vehicle mechanic and was honorably discharged on 30
July 1980 for immediate reenlistment.  He reenlisted on 31 July 1980 for a
period of 4 years.  He attained the rank of sergeant on 2 August 1982.  On
21 May 1984, the applicant was honorably discharged for immediate
reenlistment.  He reenlisted on 22 May 1984 for a period of 4 years.

2.  On 5 August 1987, in accordance with his pleas, the applicant was
convicted by a special court-martial of using marijuana and stealing
government property.  He was sentenced to be reduced to E-1, to forfeit
$400 pay per month for 1 month, to be confined for 15 days, and to be
discharged from the service with a bad conduct discharge.  On 1 September
1987, the convening authority approved only so much of the sentence as
provided for a bad conduct discharge and reduction to E-1.

3.  The decision of the U.S. Army Court of Military Review was not filed in
the applicant's Official Military Personnel File.  The bad conduct
discharge was ordered to be executed on 8 March 1988.

4.  Accordingly, the applicant was discharged on 8 April 1988 under the
provisions of Army Regulation 635-200, chapter 3, as a result of a court-
martial.  He was issued a bad conduct discharge.  He had served 10 years,
11 months, and 6 days of total active service.

5.  Army Regulation 635-200 sets forth the basic authority for separation
of enlisted personnel.  Chapter 3 of this regulation states that a Soldier
will be given a bad conduct discharge pursuant only to an approved sentence
of a general or special court-martial.  The appellate review must be
completed and the affirmed sentence ordered duly executed.

6.  Section 1552(f), Title 10, United States Code states that the Army
Board for Correction of Military Records can only review records of court-
martial and related administrative records to correct a record to
accurately reflect action taken by reviewing authorities under the Uniform
Code of Military Justice or to take clemency action.

7.  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 (emphasis
added), or is otherwise so meritorious that any other characterization
would be clearly inappropriate.

8.  Army Regulation 635-200, paragraph 3-7, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a Soldier whose military record is satisfactory
but not sufficiently
meritorious to warrant an honorable discharge.  A characterization of under
honorable conditions may be issued only when the reason for the Soldier’s
separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The DVA does not fall under the purview of this Board or the Department
of Defense.

2.  The applicant's contentions relate to evidentiary and procedural
matters that should have been adjudicated in the court-martial appellate
process, and furnish no basis for recharacterization of the discharge.

3.  Good post service conduct alone is not a basis for upgrading a
discharge.

4.  Evidence of record shows the applicant, a sergeant, was discharged with
a bad conduct discharge for using marijuana and larceny.  As a result, his
record of service did not meet the standards of acceptable conduct and
performance of duty for Army personnel.  Therefore, clemency in the form of
an honorable discharge is not warranted in this case nor was his service
sufficiently satisfactory to warrant a general discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

JM_____  ML______  __RS____  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.



            ___John Meixell_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050005917                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051201                                |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |19880408                                |
|DISCHARGE AUTHORITY     |AR 635-200 Chapter 3                    |
|DISCHARGE REASON        |As a result of a court-martial          |
|BOARD DECISION          |NC                                      |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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