RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  26 July 2007
	DOCKET NUMBER:  AR20060008193 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Michael L. Engle

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. Jerome L. Pionk

Member

Mr. John G. Heck

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 be upgraded to honorable.  In the event that his request for an upgrade is not granted, he further requests, that he be issued a Certificate of Release or Discharge from Active Duty (DD Form 214) for his 7 years of good service.

2.  The applicant states, in effect, that he received the Army Commendation Medal, Army Achievement Medal, Army Good Conduct Medal, and had served his country honorably overseas and with the North Atlantic Treaty Organization.  He further states that he was married for the first 7 years of his active duty service and his record will show he was an outstanding Soldier.  He caught his wife cheating in 2003 and filed for a divorce.  After that, he got in with the wrong crowd and started having trouble.  The military offered him no help with his marriage problems or with his subsequent drug problems.  His commander and first sergeant failed him.  He states that he served his punishment and was put out of the service with a bad conduct discharge.  He believes that his 7 years of honorable service should not be included in his bad conduct discharge since his problems were only during the last 6 months of his service.  He also states that he has had no further trouble.  He has remarried and is trying to be a positive part of his community as he was during his first 7 years of active duty.      

3.  The applicant provides letters of support from his employer, pastor, and neighbor, stating that he has always been a dependable employee, showing good judgment and maturity.  He has displayed a high degree of integrity, responsibility, and ambition.  His pastor says that the applicant has been dependable, trustworthy and a hard worker, who is remorseful for the poor choices he made in his past.  He has settled into a family-oriented routine.  The applicant's neighbor, who has known him for 5 years, says that he is a hard worker who has learned from his mistakes.  He is always willing to help his neighbors and has shown himself to be mature and responsible.

CONSIDERATION OF EVIDENCE:

1.  On 23 August 1996, the applicant enlisted in the Regular Army for 5 years.  He completed his initial training and was awarded military occupational specialty 35D1O (Air Traffic Control Equipment Repairer).  

2.  On 8 March 2001, the applicant reenlisted in the Regular Army for 3 years, in the rank of specialist, pay grade E4.  He had completed 4 years, 6 months, and 16 days of creditable, honorable service.

3.   Charges were preferred under the Uniform Code of Military Justice (UCMJ) for violation of Article 81 (Charge I) for conspiring to manufacture a controlled substance; Article 92 (Charge II) for violating a lawful regulation by possessing drug paraphernalia; and Article 112a for wrongful use (Additional Charge), wrongful manufacture (Charge III, Specification 2), and possession of methamphetamine with intent to distribute (Charge III, Specification 1).  

4.  On 14 December 2002, the applicant, through his defense counsel, submitted an offer to plead guilty to Charges II and III and to the Additional Charge.  By exceptions and substitutions, the applicant agreed to plead as follows: to specification 1 of Charge III, guilty except for the words "with intent to distribute the said controlled substance."; In return for his plea offer, he requested that the convening authority agree to disapprove any confinement adjudged in excess of 6 months and a dishonorable discharge.  If a dishonorable discharge was adjudged, the convening authority could approve a bad conduct discharge.  Any other lawful punishment may be approved.

5.   On 21 February 2002, a general court-martial convened.  The applicant pled not guilty before a military judge to Charge I and its specification for violation of Article 81; he plead guilty to Charge II and its specification; he plead guilty to Charge III, Specification 1, excepting the words, "with intent to distribute the said controlled substance, to which he plead not guilty; he plead not guilty to Charge III, Specification 2; he plead guilty to the Additional Charge I and its Specification. 

6.  The Trial Counsel moved to dismiss the charges to which the applicant had pled not guilty.

7.  The military judge accepted the applicant's plea and dismissed those charges to which he had pled not guilty.  The military judge found him guilty of the remaining charges and specifications and sentenced him to reduction to private, pay grade E1, total forfeitures, confinement at hard labor for 7 months, and a bad conduct discharge.

8.  On 16 January 2004, the United States Army court of Criminal Appeals affirmed the findings of guilty and the sentence.  On 21 May 2004, the United States Court of Appeals for the Armed Forces denied applicant's petition for grant of review.

9.  General Court-Martial Order Number 105, Headquarters, United States Army Armor Center and Fort Knox, Fort Knox, Kentucky, dated 3 June 2004, noted the sentence to a bad conduct discharge, confinement for 6 months, forfeiture of all pay and allowances, and reduction to private, pay grade E1, adjudged on
21 February 2002, as promulgated in Corrected General Court-Martial Order Number 6, Headquarters, United States Army Aviation Center and Fort Rucker, Fort Rucker, Alabama 36362, dated 8 May 2002, had been affirmed.  That portion of the sentence pertaining to confinement had been served.  Article 71(c) having been complied with, the bad conduct discharge was ordered to be executed.  

10.  The applicant's DD Form 214 shows that he was discharged on 16 July 2004 under the provisions of Army Regulation 635-200, chapter 3, due to court-martial. He received a bad conduct characterization of service.

11.  Army Regulation 635-5 (Separation Documents) prescribes policies and procedures regarding separation documents.  It provides, in pertinent part, that a DD Form 214 will be prepared for each Active Army Soldier on termination of active duty by reason of administrative separation, including retirement or expiration term of service (ETS), physical disability, or punitive discharge under the UCMJ.  A DD Form 214 will not be issued to active duty Soldiers discharged for immediate reenlistment in the Regular Army.

DISCUSSION AND CONCLUSIONS:

1.  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 final discharge appropriately characterizes the misconduct for which the applicant was convicted.

2.  The applicant’s reported good post-service conduct is noted.  However, it does not sufficiently mitigate his offenses committed during his military service.

3.  There are no regulatory provisions that permit issuance of a DD Form 214 for a portion of an enlisted member's active duty service.  Therefore, the applicant's request to be issued a DD Form 214 for his years of "good service" should not be granted.  Furthermore, he was not entitled to receive a DD Form 214 at the time of his immediate reenlistment in to the Regular Army.  

4.  In view of the foregoing, there is no basis for granting the applicant's request.






BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_JLP____  ___LDS _  __JGH __  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.




___    Linda D. Simmons____
          CHAIRPERSON




INDEX

CASE ID
AR20060008193
SUFFIX

RECON
 
DATE BOARDED
20070726
TYPE OF DISCHARGE
BCD
DATE OF DISCHARGE
20040716 
DISCHARGE AUTHORITY
AR 635-200. . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
105.0100
2.

3.

4.

5.

6.