RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        11 October 2006
      DOCKET NUMBER:  AR20060001135


      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. Maria C. Sanchez              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Patrick H. McGann, Jr.        |     |Chairperson          |
|     |Mr. David R. Gallagher            |     |Member               |
|     |Mr. Roland S. Venable             |     |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 general discharge be
upgraded to an honorable discharge.

2.  The applicant states, in effect, that his discharge should be changed
based on a favorable clemency action.

3.  The applicant provides a copy of his DD Form 214 (Certificate of
Release or Discharge from Active Duty); a DA Form 2496 (Disposition Form),
dated 29 April 1987; and a DA Form 199 (Physical Evaluation Board
Proceedings), dated 23 October 1985, in support of his application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests an upgrade of the applicant's discharge due to a
favorable clemency action.

2.  Counsel states, in effect, the applicant earned an Army Service Ribbon,
an Expert Marksmanship Qualification Badge with Rifle Bar, and the Army
Achievement Medal with Second Oak Leaf Cluster.  Counsel continues the
applicant was convicted by a General Court-Martial on 12 December 1986 for
violation of Article 112a [Wrongful use, possession, etc., of controlled
substances] of the Uniform Code of Military Justice (UCMJ).  Counsel
contends that the applicant was discharged under other than honorable
condition and separated for misconduct – commission of a serious offense
under the provisions of paragraph 14-12c of Army Regulation 635-200
(Personnel Separations – Enlisted Personnel).

3.  Counsel argues that the issues raised by the applicant "amply advance
his contentions and substantially reflect the probative facts needed for an
equitable review."

4.  Counsel does not provide any additional documentary evidence in support
of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 21 September 1987, the date of his discharge from active duty.
The application submitted in this case is dated 12 January 2006.

2.  The applicant enlisted in the Army on 24 February 1984 for a period of
three years.  After completion of basic and advanced individual training,
he was awarded military occupational specialty 94B (Food Service
Specialist).

3.  The applicant submitted an incomplete copy of DA Form 199 (Physical
Evaluation Board (PEB) Proceedings), dated 23 October 1985.  These
proceedings show that the members of the PEB found the applicant physically
unfit and recommended a combined disability rating of 10 percent.  The PEB
further recommended that the applicant be separated from the service with
severance pay if otherwise qualified.

4.  On 3 October 1986, the applicant was convicted contrary to his pleas by
a panel of members sitting at a general court-martial of a specification of
wrongful distribution of cocaine.  The members sentenced the applicant to
forfeiture of $400.00 per month for 12 months and confinement for 1 year,
as shown by Headquarters, 2nd Armored Division, Fort Hood, Texas, General
Court-Martial Order Number 23, dated 12 December 1986.  On 12 December
1986, the General Court-Martial Convening Authority approved the sentence
and ordered it executed.

5.  The applicant submitted a DA Form 2496, dated 29 April 1987.  This form
shows a request was made to publish orders for a favorable clemency action
directed by the Commander, United States Army Correctional Activity
(USACA).  This form also shows that "attached at enclosure 1 is a favorable
clemency action"; however, this attachment was not submitted by the
applicant and is not available for review.

6.  The applicant's records contain an Action memorandum, dated 27 April
1987, which was attached to DA Form 2496, dated 29 April 1987.  The
memorandum shows the USACA Commander approved the special petition to remit
the unexecuted portion of the applicant's confinement effective 1 May 1987.

7.  Item 21 (Time Lost) of the applicant's DA Form 2-1 (Personnel
Qualification Record) shows that he was imprisoned during the period 3
October 1986 through 30 April 1987.

8.  On 3 August 1987, the applicant was advised of his rights and
advantages that may accrue to him by voluntarily remaining on active duty
beyond the scheduled date of his release for the purpose of completing
hospital care and/or physical disability evaluation.  The applicant elected
for retention on active duty beyond the scheduled date of expiration of his
term of service.

9.  On 17 September 1987, the Chief, Patient Administration Division of USA
Medical Department Activity stated the applicant was initially processed
through the disability system in 1985.

10.  The Chief, Patient Administration Division continued that a Medical
Evaluation Board was initiated in September 1985, a PEB had convened on
25 October 1985 and that the PEB recommended a 10 percent disability with
severance pay which the applicant agreed with at that time.

11.  The Chief, Patient Administration Division also stated that due to a
Chapter 14 action the Disability Processing was suspended and the case was
returned to Fort Hood.   The Chief, Patient Administration Division
continued that the applicant was convicted by a General Court-Martial and
sentenced to one year confinement and reduction to the grade of private.

12.  The Chief, Patient Administration Division stated that upon arrival at
the correctional facility at Fort Riley, the applicant presented himself at
the podiatry clinic and subsequently underwent a talonavicular and
navicular cuneiform fusion [two bones in the ankle fused together].  The
Chief, Patient Administration Division recommended that the applicant's
case be again referred to the PEB.

13.  The Chief, Patient Administration Division indicated that, on 14
August 1987, he was notified that the applicant was being processed through
administrative channels under the provisions of Chapter 14 of Army
Regulation 635-200.  The Chief, Patient Administration Division concluded
that a determination should be made as to whether the applicant should be
processed through the physical disability channels or through
administrative channels.

14.  DA Form 2496, dated 1 September 1987, shows that the applicant tested
positive for drug use (cocaine) by a urinalysis conducted on 13 August
1987.

15.  On 15 September 1987, nonjudicial punishment was imposed against the
applicant for wrongful use of cocaine during the period 13 July 1987
through 14 August 1987.  The punishment consisted of 30 days extra duty, 30
days restriction, and forfeiture of $250.00 per month for two months.

16.  DA Form 4856-R (General Counseling Form), dated 15 September 1987,
shows the applicant was counseled at the USACA, Fort Riley, Kansas
regarding the inappropriateness and unacceptability of his behavior which
lead to the court-martial as well as the imposition of any Article 15's or
other adverse nonjudicial actions which may have occurred prior to or since
his arrival at the USACA.  The counselor continued that failure to comply
with the training standards or other acts in violation of Army Regulations,
the USACA Prisoner manual, UCMJ, civil law or the customs and traditions of
the Army in general would result in the appropriate measures being taken,
to include a recommendation for elimination from the service for
unsatisfactory performance or misconduct under the provisions of Army
Regulation 635-200.

17.  The counselor further stated that the applicant was advised of the
various characterizations of service that may accompany such separations
and of the probable effects of receiving a discharge under honorable
conditions (general) or under other than honorable conditions, in terms of
both Veteran Affairs and other benefits as well as prejudice in civilian
life in general.  The applicant acknowledged, understood, and concurred
with the reason for the counseling and authenticated the form with his
signature.

18.  On 16 September 1987, the applicant was notified that he was being
considered for elimination from the service under the provisions of
paragraph 14-12c of Army Regulation 635-200 for misconduct.  On 16
September 1987, the applicant waived his option to have a separation
medical examination.

19.  On 17 September 1987, the commanding officer of the 6th Company, 3rd
Battalion, United States Army Correctional Activity recommended that the
applicant be eliminated from the service for misconduct under the
provisions of paragraph 14-12c of Army Regulation 635-200.  The commanding
officer stated that discharge was recommended because of the applicant's
conviction by a court-marital for wrongful distribution of cocaine and that
based on the seriousness of this offense, retention would be against the
good order, morale, and discipline of the Army.

20.  The commanding officer continues that the applicant tested positive
for cocaine on a unit urinalysis conducted on 13 August 1987 and
recommended that the applicant's service be characterized as under
honorable conditions.

21.  On 17 September 1987, the applicant was advised of the basis for the
contemplated action to separate him for misconduct under Army Regulation
635-200 and its effects; of the rights available to him; the effect of any
action taken by him in waiving his rights, and understood he was entitled
to have his case considered by an administrative separation board.  The
applicant voluntarily waived consideration of his case contingent upon his
receiving a characterization of service or description of separation no
less favorable than under honorable conditions, did not submit statements
on his own behalf, and requested a
personal appearance before an administrative board if his conditional
waiver was not accepted.  The applicant further understood that he may
encounter substantial prejudice in civilian life if a general discharge
under honorable conditions was issued.

22.  On 17 September 1987, the Staff Judge Advocate found the applicant's
separation packet legally sufficient, that the applicant's service record
was not sufficiently meritorious to warrant an upgrade to an honorable
discharge and recommended approval to separate him from the service with a
General Discharge Certificate.  On 18 September 1987, the commander of
USACA, Fort Riley, Kansas, approved the discharge under the provisions of
chapter 14 of Army Regulation 635-200 and directed that the applicant be
separated with a general discharge.

23.  The applicant's DD Form 214 shows he was separated on 21 September
1987, under the provisions of paragraph 14-12c of Army Regulation 635-200,
by reason of misconduct (commission of an serious offense) and issued a
General Discharge Certificate.  He had served 2 years, 11 months, and 28
days of net active Federal service with 210 days of lost time due to
confinement.

24.  There is no evidence in the available records which shows that the
applicant applied to the Army Discharge Review Board for an upgrade of his
discharge within that board’s 15-year statute of limitation.

25.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 14 establishes policy and
prescribes procedures for separating members for misconduct.  Specific
categories include minor disciplinary infractions, a pattern of misconduct,
commission of a serious offense, and convictions by civil authorities.
Action will be taken to separate a member for misconduct when it is clearly
established that rehabilitation is impracticable or is unlikely to succeed.
 A discharge under other than honorable conditions is normally appropriate
for a soldier discharged under this chapter.  However, the separation
authority may direct a general discharge if such is merited by the
Soldier's overall record.  Only a general court-martial convening authority
may approve an honorable discharge or delegate approval authority for an
honorable discharge under this provision of regulation.





26.  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.  Whenever there is doubt, it is to be resolved in favor of
the individual.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was granted clemency and therefore his
general discharge should be upgraded to an honorable discharge.

2.  Evidence shows the applicant was granted clemency by the USACA
Commander to remit the unexecuted portion of his sentence to confinement.
However, this clemency action alone is not a basis for upgrading a
discharge and does not mitigate his indiscipline in the Army, particularly
in view of the conviction by general court-martial for drugs and his
misconduct subsequent to that court-martial.

3.  Evidence shows that the applicant was properly and equitably discharged
in accordance with the regulations in effect at the time.  Absent evidence
to the contrary, administrative determinations are afforded a presumption
of regularity.  Since the record and submission by the applicant do not
identify any errors, it is determined that all requirements of law and
regulations were met and the rights of the applicant were fully protected
throughout the separation process.

4.  The applicant's administrative separation was in compliance with
applicable regulations with no indication of procedural errors which would
tend to jeopardize his rights.  The type of discharge and reason for
separation were appropriate considering all the facts of the case.

5.  Evidence of record shows a pattern of misconduct which included a court-
martial conviction for wrongful distribution of drugs and a nonjudicial
punishment for use of drugs.  Therefore, his quality of military service
does not meet the standards of acceptable conduct and performance of duty
for Army personnel and as a result, he is not entitled to an honorable
discharge.

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 regarding his request
to upgrade his discharge.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_PHM___  _DRG___  __RSV___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




                                     _Patrick H. McGann, Jr.
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060001135                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061011                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |1987/09/21                              |
|DISCHARGE AUTHORITY     |AR 635-200, para 14-12c                 |
|DISCHARGE REASON        |Misconduct – serious offense            |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]