RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 February 2007
	DOCKET NUMBER:  AR20060010885 


	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. Anita McKim-Spilker

Analyst

The following members, a quorum, were present:


Mr. Mark D. Manning

Chairperson

Mr. John T. Meixell

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 that his Bad Conduct Discharge be upgraded.

2.  The applicant states, in effect, that his discharge was not unjust because he accepts responsibility for his actions.  However, he is trying to change some of his past and be a productive member of society.  He is enrolled in vocational- technical school and wants to gain access to his veteran's benefits.

3.  The applicant did not provide additional documentary evidence in support of this application.    

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 8 May 1998, the date of his discharge from the Army.  The application submitted in this case is dated 27 July 2006.

2.  On 16 May 1996, the applicant enlisted in the Regular Army for a period of three years.  He was trained in, awarded, and served in military occupational specialty (MOS) 16T (Patriot Missile Crewmember).  

3.  The applicant attained the grade of private/E-2 and received the Army Service Ribbon and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar. 

4.  On 8 April 1997, the applicant pled guilty at a general court-martial of five specifications of wrongful distribution of lysergic acid diethylamide (LSD), and wrongful possession of LSD with the intent to distribute.  He was sentenced to be discharged with a bad conduct discharge, to confinement for three years, and forfeiture of all pay and allowances.  On 30 May 1997, the sentence was approved, and except for the part of the sentence extending to a bad conduct discharge, was ordered executed.  The applicant had a pre-trial agreement stipulating that the convening authority would not approve any confinement in excess of 69 months but could approve all other lawful punishment imposed.  

5.  The record of trial was forwarded to The U.S. Army Court of Criminal Appeals for review.  On 6 August 1997, the court affirmed the findings of guilt and the sentence as approved by the convening authority.  On 28 April 1998, the U.S. Court of Appeals for the Armed Forces denied the applicant's petition for review.  On 8 May 1998, the applicant was separated with a Bad Conduct Discharge.  On 24 April 1998, the convening authority ordered the bad conduct discharge executed as evidenced by General Court-Martial Order Number 50.  He had completed 10 months and 18 days of creditable active service and had 394 days of lost time due military confinement.  

6.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, Section IV, establishes policy and procedures for separating members with a dishonorable or bad conduct discharge, and provides that a soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, and that the appellate review must be completed and the affirmed sentence ordered duly executed.

7.  Army Regulation 635-200, paragraph 3-7a, 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.

8.  Army Regulation 635-200, paragraph 3-7b, 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.

9.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.   In accordance with Title 10, United States Code, Section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records is not empowered to change a discharge due to matters which should have been raised in the appellate process, rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.   Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.

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

2.  The applicant's official record revealed serious misconduct resulting in conviction by a general court-martial.  The Board noted the applicant's contentions; however, he failed to provide sufficiently mitigating evidence to warrant a change in his discharge.

3.  The Board is empowered to change the characterization of the discharge if clemency is determined to be appropriate.  Given the above, and after a thorough review of the applicant’s record and any evidence submitted, there is no cause for clemency.

4.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__mdm___  __jtm___  __qas___  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.




							Mark D. Manning
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20060010885
SUFFIX

RECON

DATE BOARDED
20070222
TYPE OF DISCHARGE
(BCD)
DATE OF DISCHARGE
19980508
DISCHARGE AUTHORITY
AR 635-200, Chap 3
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.6800
2.
106.0008
3.

4.

5.

6.