RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  14 August 2007
	DOCKET NUMBER:  AR20070004865 


	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. John J. Wendland, Jr.

Analyst

The following members, a quorum, were present:


Mr. Michael J. Flynn

Chairperson

Mr. Larry W. Racster

Member

Mr. Donald W. Steenfott

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, upgrade of his Bad Conduct Discharge.

2.  The applicant states, in effect, that although he knew the person who was in possession of the marijuana, he believes he was entrapped because he would not have done what he did had he not been approached by Criminal Investigation Division (CID) officials.  He also states, in effect, that he is a law-abiding citizen and has been for the last 22 years.

3.  The applicant provides a copy of pages 31 through 53 of his trial transcript.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 16 December 1985, the date of his discharge from the Army.  The application submitted in this case is dated 11 January 2007.

2.  The applicant enlisted in the U.S. Army Reserve on 15 September 1982 and entered active duty in the Regular Army for a period of 3 years on 10 November 1982.  Upon completion of basic combat training and advanced individual training, the applicant was awarded military occupational specialty (MOS) 55B (Ammunition Storage Specialist).  The highest rank the applicant attained was specialist four (SP4)/pay grade E-4.  The applicant’s records show that he served continuously on active duty until his discharge on 16 December 1985.  The applicant’s military service records document no acts of valor, significant achievement, or service warranting special recognition.

3.  On 13 November 1984, the applicant was tried, entered a plea of guilty, and convicted by general court-martial of a violation of Article 134 of the Uniform Code of Military Justice for, on or about 5 July 1984, wrongfully distributing 96 grams, more or less, of marijuana.  His sentence included forfeiture of all pay and allowances, reduction to E-1, confinement for 18 months, and discharge from the Service with a bad conduct discharge.

4.  Headquarters, Fort Hood, Fort Hood, Texas, General Court-Martial Order Number 3, dated 15 January 1985, promulgated the court-martial and shows that the sentence was approved and ordered executed, except for the part of the sentence extending to the bad conduct discharge.

5.  The applicant was confined by military authorities from 16 November 1984 through 15 December 1985.
6.  On 12 March 1985, the United States Army Court of Military Review, acting on the applicant's appeal, found the findings of guilty and the sentence correct in law and fact and determined on the basis of the entire record that they should be approved.  Thereafter, the United States Army Court of Military Review affirmed the findings of guilt and the sentence.  The record does not reflect the subsequent action, if any, by the Court of Appeals for the Armed Forces.  However, the subsequent action by the convening authority on 12 July 1985, directing execution of the Bad Conduct Discharge, indicates all required appellate reviews were conducted.

7.  The applicant's military service records contain a copy of Headquarters,
U.S. Army Correctional Activity, Fort Riley, Kansas, General Court-Martial Order Number 355, dated 12 July 1985.  This order provides, in pertinent part, that the applicant's sentence to a bad conduct discharge, confinement for 18 months, forfeiture of all pay and allowances, and reduction to the grade of E-1, adjudged on 16 November 1984, had been affirmed.  This order also provides, in pertinent part, that Article 71(c) having been complied with, the bad conduct discharge be executed.  This document further provides that confinement will be in the U.S. Army Correctional Activity, Fort Riley, Kansas, and the confinement will be served therein or elsewhere as competent authority may direct.

8.  The applicant's military service records contain a copy of Headquarters,
U.S. Army Correctional Activity, Fort Riley, Kansas, General Court-Martial Order Number 715, dated 16 December 1985.  This order shows, in pertinent part, that the unexecuted portion of the sentence to confinement for 18 months in the applicant’s general court-martial case, adjudged on 16 November 1984, was remitted.

9.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged with a bad conduct discharge on 16 December 1985 under the provisions of Army Regulation 635-200, Chapter 3, section IV. Item 29 (Dates of Time Lost During This Period) shows the period of the applicant’s confinement was from 16 November 1984 through 15 December 1985.  This document also shows that, at the time of his discharge, the applicant was credited with completing 2 years and 2 days net active service and 1 month and 25 days prior inactive service.

10.  In support of his application, the applicant provides copies of pages
31 through 53 of his trial transcript that contain the testimony of witnesses testifying on behalf of the applicant during the sentencing phase of his court-martial.  This documentation shows that two of the applicant’s platoon leaders, his noncommissioned officer in charge, and squad leader testified that the applicant, in pertinent part, was a good Soldier; that what he did was out of character and he could reform; and that he should not be placed in confinement for the offense, but should either be sent to the retraining brigade or discharged.

11.  Title 10 of the United States Code, section 1552, as amended, does not permit any redress by this Board of the finality of a court-martial conviction and empowers the Board to only change a discharge if clemency is determined to be appropriate.  

12.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time of the applicant's separation from active duty, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.  Chapter 3, Section IV, of this Army regulation provided the policies and procedures for separating members with a dishonorable or bad conduct discharge.  It stipulated that a Soldier 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 such affirmed sentence has been ordered duly executed.

13.  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.

14.  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.

15.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his bad conduct discharge should be upgraded because of entrapment committed by CID officials.  However, the applicant provides insufficient evidence in support of his claim.

2.  There is no evidence of record showing that the applicant or his defense counsel asserted a defense of entrapment or presented evidence of entrapment at his court-martial.  In addition, the applicant fails to provide any evidence to support his claim of entrapment in his application to this Board.  In fact, the evidence of record shows that the applicant pled guilty before a general court-martial to the charge and specification for which he was convicted.  

3.  The evidence of record confirms that the applicant’s trial by court-martial was warranted by the gravity of the offense for which he was charged.  In the absence of evidence to the contrary, the Board presumes administrative regularity with respect to the applicant's court-martial and concludes that the applicant's record of service prior to his court-martial and the testimony of witnesses on his behalf at the court-martial were duly considered.

4.  The evidence of record shows the applicant’s conviction and discharge were effected in accordance with applicable law and regulations, his rights were protected throughout the court-martial process, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

5.  Title 10, United States Code, section 1552, as amended, does not permit any redress by this Board which would disturb the finality of a court-martial.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  

6.  After a thorough and comprehensive review of the applicant’s military service record, it is concluded that based on the seriousness of the offense for which he was convicted, clemency would not be appropriate in this case.

7.  The Board notes the applicant's assertion that he has been a law-abiding citizen for the past 22 years.  However, the applicant's claim of good post-service conduct, in itself, is not sufficient to overcome his military record of indiscipline or as a basis for upgrading his discharge.


8.  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.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___MJF__  ___LWR_  ___DWS_  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.




__   _Michael J. Flynn_____
          CHAIRPERSON




INDEX

CASE ID
AR20070004865
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/08/14
TYPE OF DISCHARGE
BCD
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.

2.

3.

4.

5.

6.