RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  26 April 2007
	DOCKET NUMBER:  AR20060014067 


	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. Gerard W. Schwartz

Acting Director

Ms. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. William D. Powers

Chairperson

Mr. William F. Crain

Member

Mr. Dale E. DeBruler

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 (BCD) be upgraded.

2.  The applicant states, in effect, that he went to Korea at a very young age and completed 4 years of service.  He was introduced to drugs while in the military and then sought treatment for this disease.  He has since operated and owned his own barbershop for 16 years.  He is a home owner, hard worker, and upstanding citizen.  He mentors young adults that are in treatment centers and training schools.  He has turned his life around and is now asking that his character of service be upgraded in order to qualify for health care.  

3.  The applicant provides no additional documentation beyond his statement in support of his request. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 21 October 1980, the date of his discharge.  The application submitted in this case is dated 25 September 2006 but was received for processing on 4 October 2006.

2.  The applicant's record shows he enlisted in the Army Reserve, on 21 November 1975, at the age of 22.  His date of birth is 25 July 1953.  He enlisted in the Regular Army on 25 November 1975, in the pay grade of E-1, for 4 years, with an established expiration of term of service (ETS) of 24 November 1979.  The applicant successfully completed basic combat training at Fort Dix, New Jersey, and advanced individual training at Fort Sill, Oklahoma.  On completion of his advanced training, he was awarded the military occupational specialty (MOS), 13E, Cannon Fire Direction Specialist.  He was advanced to pay grade E-3 on 6 January 1977.

3.  Between 5 November 1976 and 6 February 1978, he received nonjudicial punishment on four occasions under Article 15, UCMJ, for being disrespectful in language toward his noncommissioned officer, for leaving his assigned post, for sleeping in a POV (privately owned vehicle) while posted as a sentinel guard, and for the wrongful possession of marijuana.  His punishments consisted of a reduction to pay grade E-2 and E-1, forfeitures of pay, correctional custody for 30 days, and restriction and extra duties.

4.  The applicant served in Korea from 25 March 1978 to 22 March 1979. 
5.  In accordance with his plea he was found guilty by a special court-martial on 18 May 1979, of violation of a lawful general regulation, for possession of an unregistered handgun, of robbing marijuana from another Soldier, and of the wrongful possession of some quantity of marijuana.  His sentence consisted of a reduction to pay grade E-1, confinement at hard labor for 5 months, a forfeiture of pay for 5 months, and a BCD.  The current authority suspended confinement in excess of three months for six months and approved the remainder of the sentence.

6.  On 15 April 1980, the United States Army Court of Military Review affirmed the findings and sentence.

7.  On 21 October 1980, the applicant was discharged from the Army pursuant to the sentence of a special court-martial and was issued a BCD.  He had served 4 years, 8 months, 13 days of creditable service and 76 days of lost time due to confinement.

8.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

9.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 11-1(b) of the regulation provided, in pertinent part, that an enlisted person would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial after completion of appellate review and after affirmation of the sentence imposed.

10.  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.

11.  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, 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.  Trial by court-martial was warranted by the gravity of the offenses charged.
Conviction and discharge were effected in accordance with applicable law and regulation.
 
2.  The evidence of record shows that the applicant was convicted by a special court-martial for violation of a lawful general regulation, for possession of an unregistered handgun, of robbing marijuana from another Soldier, and the wrongful possession of some quantity of marijuana.  He was also a recipient of nonjudicial punishment on four occasions, for several disciplinary infractions.  He was discharged pursuant to the sentence of a special court-martial and was issued a BCD when the sentence to BCD was affirmed.  
 
3.  The applicant has provided no evidence to show that his discharge was unjust at the time of his offenses.  He has not provided evidence sufficient to mitigate the character of his discharge.

4.  The evidence shows that the applicant served in Korea from 25 March 1978 to 22 March 1979.  He was 24 year, 8 months, and 2 days old at the time he departed and was 25 years, 7 months, and 28 days old when he returned from Korea. 

5.  The applicant alleges that he was introduced to drugs while in the military and then sought treatment for this disease.  The evidence shows that he was in possession of marijuana while serving on active duty; however, his records failed to show that he used drugs or sought treatment for this disease.  Regardless, his exposure and possible use of illegal drugs in no way mitigates his misconduct.

6.  The applicant contends that he has since operated and owned his own barber shop for 16 years, is a home owner, hard worker, and upstanding citizen.  He also mentors young adults that are in treatment centers and training schools and has turned his life around.  His post service conduct is not sufficient as a basis to upgrade his bad conduct discharge, particularly in view of his misconduct and offenses.  

7.  The Board does not change the character of service for the purpose of enabling former service members to obtain or qualify for health care.



8.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy
this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____D___  __WDP _  __WFC__  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.




_____William D. Powers______
          CHAIRPERSON




INDEX

CASE ID
AR20060014067
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070426
TYPE OF DISCHARGE
BCD
DATE OF DISCHARGE
19801021
DISCHARGE AUTHORITY
AR 635-200, chapter 11
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.