RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 December 2006
      DOCKET NUMBER:  AR20060007213


      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. Allen Raub                    |     |Chairperson          |
|     |Mr. Frank Jones                   |     |Member               |
|     |Mr. Qawiy 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, in effect, that clemency be granted in the form
of an honorable discharge.

2.  The applicant states that he had one offense in 11 years and 11 months
of service based upon an isolated error in judgment.  He contends that he
was forthcoming in regard to his mistake and that he accepted
responsibility for his actions.  He states that his Officer Evaluation
Reports characterized him as an exceptional officer, that his record before
his offense was without reprimand or any other disciplinary action, and
that he was not given a sentence at his court-marital.  He states that he
was simply discharged from the service based on the findings of his court-
martial.  He further states that since his discharge he has had no offenses
or been convicted of any crimes.

3.  The applicant provides a Tennessee Bureau of Investigation Criminal
Records Report; a City Warrant reflecting dismissal of charges; the
transcript of his Record of Trial; and service personnel records.

CONSIDERATION OF EVIDENCE:

1.  Having prior enlisted service in the Army National Guard, the applicant
was appointed a Reserve officer and entered active duty on 9 June 1983.  He
was promoted to first lieutenant on 1 April 1986.

2.  On 29 September 1986, the applicant tested positive for cocaine on a
random urinalysis.  Charges were preferred against the applicant for the
drug offense on 26 January 1987.  Trial by general court-martial was
recommended.

3.  On 7 May 1987, in accordance with his plea, the applicant was convicted
by a general court-martial of using cocaine.  He was sentenced to be
dismissed from the service, to be confined for 5 months, and total
forfeitures of all pay and allowances.  On 8 July 1987, the convening
authority approved only so much of the sentence as provided for a dismissal
from the service.

4.  On 8 May 1987, the applicant requested placement on voluntary excess
leave, which the convening authority approved on 13 May 1987.  The
applicant began his excess leave on 20 May 1987.

5.  On 22 March 1988, the U.S. Army Court of Military Review affirmed the
findings of guilty and the sentence.   On 8 August 1988, the Assistant
Secretary of the Army (Manpower and Reserve Affairs) ordered the dismissal
to be executed.
6.  The applicant’s excess leave terminated with the issuance of his DD
Form 214 (Certificate of Release or Discharge from Active Duty) on 12
February 1997. Despite the publication of General Court-Martial Order
Number 40, dated
6 September 1988, which directed his dismissal effective 23 September 1988,
it appears the Army misplaced his records, and his DD Form 214 was not
issued until over eight years later.  However, it appears the Army delay
did not prejudice the applicant.

7.  The applicant was dismissed on 12 February 1997.  He had served 13
years, 8 months, and 4 days of total active service.  His DD Form 214
erroneously shows his character of service as under other than honorable
conditions; that he was discharged under the provisions of Army Regulation
600-8-24, paragraphs 4-2b and 4-24a(1); that the narrative reason for
separation was unacceptable conduct; and that his separation code was BNC
(unacceptable conduct).

8.  Army Regulation 600-8-24 (Officer Transfers and Discharges) prescribes
policies and procedures governing transfer and discharge of officer
personnel.

9.  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 (UCMJ) or to take clemency action.

10.  Army Regulation 600-8-24, paragraph 1-22, provides 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 an officer (emphasis added).

11.  Army Regulation 600-8-24, paragraph 1-22b, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to an officer 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 evidence of record does not support the applicant’s contention that
he was not given a sentence at his court-marital.  Evidence of record shows
he was sentenced to a dismissal, confinement for 5 months, and to forfeit
all pay and allowances.  The convening authority approved only so much of
the sentence as provided for a dismissal.
2.  Good post-service conduct alone is normally not a basis for upgrading a
discharge.

3.  Evidence of record shows the applicant, a first lieutenant who is
expected to act with the highest integrity at all times, was dismissed from
the service for using cocaine.  As a result, his record of service was not
satisfactory and did not meet the standards of acceptable conduct and
performance of duty for an Army officer. 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

AR_____  __FJ____  _QS____  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 Raub_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060007213                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061212                                |
|TYPE OF DISCHARGE       |DD                                      |
|DATE OF DISCHARGE       |19970212                                |
|DISCHARGE AUTHORITY     |AR 600-8-24                             |
|DISCHARGE REASON        |Unacceptable conduct                    |
|BOARD DECISION          |NC                                      |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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