RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 September 2006
      DOCKET NUMBER:  AR20050017438


      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.  G. E. Vandenberg             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Allen L. Raub                 |     |Chairperson          |
|     |Ms. Linda M. Barker               |     |Member               |
|     |Mr. Qawiy A. Sabree               |     |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 his bad conduct discharge (BCD) be upgraded.
The applicant requests to present his case before a formal panel of the
Board.

2.  The applicant states his command did not take into consideration his
nearly eight years of honorable service.  His command knew, as early as
1993, he had an addiction and did not offer or require him to undergo any
treatment even after his wife asked for help for him.  He states, in
effect, that he has turned his life around and that combined with the his
prior honorable service and lack of command support he warrants an upgrade.


3.  The applicant provides copies of his DD Form 214 (Certificate of
Release or Discharge from Active Duty), five letters of recommendation, and
eight photographs.

CONSIDERATION OF EVIDENCE:

1.  The records show the applicant entered active duty on 18 March 1986.

2.  He served at Fort McNair with the Commander in Chief’s Guard.  He was
awarded the Army Achievement Medals on 1 September 1987 and 18 July 1988
and reenlisted on 11 December 1988.

3.  The applicant was awarded the Good Conduct Medal, on 16 May 1989; the
Parachute Badge, on 8 March 1989; the Army Commendation Medal, on
18 September 1990; and the Good Conduct Medal (second award), on 1 April
1992.

4.  He was promoted to sergeant on 23 April 1992.

5.  On 11 March 1993, he extended his enlistment for 3 months and for
39 months on 4 December 1993.

6.  On 25 May 1993, a civilian court convicted the applicant of assault on
his wife.

7.  On 23 June 1993, a civilian court convicted the applicant of driving
without a license.

8.  On 2 September 1993 he was authorized to wear the Special Forces Tab.

9.  A 1 October 1993 DA Form 268 (Report of Suspension of Favorable
Actions) indicates a bar to reenlistment was initiated effective 28
September 1993 as a result of the imposition of nonjudicial punishment
(NJP) under the provisions of Article 15 of the Uniform Code of Military
Justice (UCMJ).  A copy of the NJP action is not of record.

10.  On 7 October 1993, the applicant received NJP for failure to go to his
appointed place of duty on four diverse dates.

11.  On 17 November 1993, he received NJP for disobeying a direct order
from a noncommissioned officer (NCO) on three occasions and failure to go
to his appointed place of duty on three occasions.  The applicant’s appeal
of the punishment was denied on 9 December 1993.

12.  Civil authorities arrested the applicant for solicitation of sexual
acts from a police officer, who was posing as a prostitute.  He was held
overnight and convicted of solicitation on 23 November 1993.

13.  On 10 December 1993, he received a written reprimand for involvement
in the arrest and conviction noted above.

14.  On 13 January 1994 the applicant went AWOL (absent without leave).  He
voluntarily returned to military control on 20 January 1994 only to go AWOL
again on 25 January 1994.  The applicant was apprehended on 7 March 1994
and placed in pretrial confinement upon return to military control.

15.  Court-martial charges where preferred on 7 March 1994 for desertion,
AWOL, two specifications of failure to go to his appointed place of duty,
failure to return to his appointed place of duty, disobeying a lawful order
from an NCO, making a false official statement, theft of property in excess
of $100.00 in value, failure to pay a just debt, 4 specifications of making
worthless checks in excess of $100.00, 11 specifications of making
worthless checks of $100.00 or less, and using a phone card under false
pretenses to obtain services.

16.  On 7 April 1994 the applicant submitted a pretrial agreement, wherein
he waived his right to an UCMJ Article 32 investigation; agreed to have his
case tried by a military judge only; and to plead guilty to all charges and
specifications so long as no sentence to confinement exceed eight months.
The convening authority accepted the offer.


17.  A general court-martial was convened on 29 April 1994.  The applicant
affirmed that he waived his rights to an Article 32, UCMJ hearing and
wished to have his case heard by a military judge sitting alone.  The
applicant pled guilty to all charges and specifications, including that he
intended to desert.  The military judge accepted his pleas and found him
guilty of all charges and specifications.  During his personal testimony
during the sentencing portions of the trial, the applicant stated that he
was addicted to sleep medication.  The military judge imposed a sentence of
reduction to pay grade E-1, confinement for fourteen months, total
forfeiture of all pay, and a BCD.

18.  The Staff Judge Advocate, Fort Bragg, North Carolina, noted that,
based on the charges and specifications for which he had been found guilty,
the applicant could have received a maximum sentence of confinement for 36
years and 4 months, reduction to pay grade E-1, total forfeiture of all pay
and allowances, and a dishonorable discharge (DD).

19.  On 27 June 1994, in accordance with the pretrial agreement, the court-
martial convening authority approved a sentence of reduction to pay grade E-
1, confinement for a period of eight months, total forfeiture of all pay,
and to be discharged with a BCD.  The convening authority directed that,
except for the BCD, the sentence be executed.

20.  Pursuant to Article 66(b), UCMJ, the record of trial was referred to
the United States Army Court of Military Review (ACMR).  [NOTE: During this
time frame the military court system reorganized and the ACMR was renamed
the United States Army Court of Criminal Appeals (ACCA)].

21.  On 26 September 1994, the applicant was placed on involuntary excess
leave pending completion of the appellate review of his case.

22.  The ACCA affirmed the findings and sentence on 13 February 1995.  The
applicant did not request review by the United States Court of Appeals for
the Armed Forces within the allotted time.

23.  The applicant was discharged with a BCD on 14 November 1995.  His DD
Form 214 indicates he had 8 years, 11 months, and 22 days of creditable
service.  He had 50 days of AWOL, 53 days in pretrial confinement, 150 days
of post trial confinement, and 415 days of excess leave.



24.  In their letters of support, his family members and a friend state the
applicant takes great pride in his service and note that, except for the
last four months, he served honorably.  They indicate he is a good father,
husband, and friend and deserves a favorable consideration.

25.  Mr. T____ B____, a veterans counselor, states that the applicant has
turned himself around after having hit a low point as th result of drugs
and personal problems.  He indicates the applicant is back to the level of
commitment that was typical of his pre-1993 service.  Mr. B____’s statement
is the only document that specifically references a drug problem.

26.  The statutory authority under which this Board was created (Title 10,
United States Code, section 1552, as amended) precludes any action by this
Board that would disturb the finality of a court-martial conviction.

27.  The Manual for Courts-Martial, Table of Maximum Punishments, sets
forth the maximum punishments for offenses chargeable under the UCMJ.  The
maximum punishment for desertion under Article 85 is reduction to pay grade
   E-1, confinement for three years, total forfeiture of all pay and
allowances, and a DD.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant requested a personal appearance before the
Board, there is no statutory or regulatory right to a formal hearing.  The
Director of the ABCMR, or the Board may grant a formal hearing before which
the applicant, counsel, and witnesses may appear whenever justice requires.
 If the applicant is not satisfied with the results of the informal Board
hearing, he may submit another application, with new evidence or other
relevant matter not previously available to the Board, for reconsideration.


2.  There is no substantiating documentation to support the applicant’s
contention that he had a drug problem while on active duty or that he or
his wife contacted any member of his command seeking help for any addiction
problem.

3.  The applicant’s service was commendable prior to early in 1993, when it
took a severe downward turn.  In that year he went from being a respected
Soldier to a deserter.

4.  In comparison to the nature and extent of his overall misconduct the
applicant’s punishment was quite lenient.

5.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_ALR___  _QAS___  _LMB____  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.





                                  ___Allen L. Raub_____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050017438                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060912                                |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |



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