IN THE CASE OF:	  

	BOARD DATE:	  03 July 2008

	DOCKET NUMBER:  AR20070007011 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his bad conduct discharge be upgraded to a general discharge so that he can return to finish his military career and retire.

2.  The applicant states, in effect, his bad conduct discharge should be upgraded because the urinalysis program was faulty.  He had 19 years of honorable service before he was discharged.  Since his discharge he has been working, but not in the career field of his choice as a Law Enforcement Officer.  He is a veteran of Desert Storm/Desert Shield and has been a Soldier from start to finish. His dreams cannot come true until his discharge is upgraded from a bad conduct discharge to a general discharge.  His discharge should be upgraded based on his career, length of service, veteran's status, and his background prior to the unfortunate incident.

3.  The applicant provided a copy of his separation document (DD Form  
214), four character reference statements, and his personal statement dated  
27 April 2007.  The applicant also provided an additional statement titled:  How My Military Career Was Ruined.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military personnel record shows he enlisted in the Regular Army on 3 April 1984.  He completed the necessary training and was awarded the military occupational specialty (MOS) 11B (Infantryman).  His personnel record shows that he served as an Infantryman for 3 years.  He then changed his MOS to 42A (Human Resources Specialist), serving continuously in various assignments until he achieved the pay grade of E-7.

2.  The applicant received counseling for testing positive for cocaine during a random urinalysis conducted on 9 July 2002.  The counseling had served as a notification for his referral to the Army Substance Abuse Program (ASAP) for screening and recommendation to see if he would be enrolled in the ASAP Rehabilitative Program in accordance with Army Regulation 600-85 (Army Substance Abuse Program), paragraph 3-10.

3.  On 12 September 2002, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for wrongful use of cocaine.  His punishment consisted of a reduction [sic – presumed to mean forfeiture] of $1,487.00 per month for two months, suspended, to be automatically remitted if not vacated on or before 3 March 2003.

4.  The applicant's personnel record shows that he tested positive for cocaine on 
16 December 2002.  The suspension for his punishment was therefore vacated on 8 January 2003.  He was not given an opportunity to rebut and he was not present at the vacation proceeding.

5.  On 16 April 2003, the applicant was convicted, contrary to his plea by a general court-martial of two specifications of wrongful use of cocaine.  One of the specifications alleged the same use covered by the previous Article 15.  His punishment consisted of a bad conduct discharge from the service and confinement for 3 months.  The applicant was credited with 30 days confinement.

6.  Headquarters, United States Army Armor Center and Fort Knox, General Court-Martial Order Number 94, dated 5 August 2005, shows that the United States Army Court of Criminal Appeals affirmed the court-martial's findings and sentence with a correction to add to the last sentence of the Action paragraph, "A deferment of the automatic forfeiture of pay pursuant to Article 57(a), UCMJ, was approved on 24 April 2003, until 17 September 2003."  Article 71(c) having been complied with, the convening authority ordered the bad conduct discharge to be executed.

7.  The applicant was discharged from the Army under the provisions of Army Regulation 635-200, chapter 3 as a result of court-martial, on 28 October 2005.  The DD Form 214 he was issued shows that his characterization of service was bad conduct.  He had completed 21 years, 5 months, and 11 days of Net Active Service This Period.

8.  In the personal statement submitted by the applicant, he gave a brief description of his childhood history that involved his potential to be a baseball player, but his dreams were crushed, so he joined the Army.  He claims he had plans to do great in the Army and that his dreams were finally becoming a reality until he changed his MOS and was assigned to Fort Bragg, North Carolina.  He was moved around from unit to unit because of his profile for his rotator cuff tear in his shoulder.  

9.  He continues by stating he had to give a specimen for a urinalysis after a long weekend and that is when he tested positive for cocaine.  He knows that it was impossible for it to be true for two reasons:  one, he never took drugs; and two, he had 18 years of service.  He also was a former administrator for the urinalysis at his previous duty stations so he knew that after a long weekend Soldiers were subject to a urinalysis.  He continues by expressing his grievance concerning the way his chain of command treated him through the entire ordeal.  He thought that he was going to be discharged without a court-martial and that he did not receive a fair trial.  He concludes by stating he just wants his name back and to finish his 
8 months he had remaining before his retirement.  Additionally, the four character statements he submitted describes the applicant as a professional leader, a steward and active member of his community, a role model, a well rounded enthusiastic person, very proactive, and constantly  seeking opportunities to better train and teach others.

10.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 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, the appellate review must be completed and the affirmed sentence must be ordered duly executed.

11.  Court-martial convictions stand as adjudged or as 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 (ABCMR) is not empowered to set aside a conviction.  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.  The applicant contends that his bad conduct discharge should be upgraded to a general discharge, so that he can return to finish his military career and retire. He states that the urinalysis program was faulty and he had 19 years of honorable service before he was discharged.  He is a veteran of Desert Storm/Desert Shield and has been a Soldier from start to finish.  

2.  The evidence of record shows that the applicant tested positive for cocaine on 9 July 2002 and 12 December 2002.  He accepted NJP under the provisions of Article 15, UCMJ, for the wrongful use of cocaine.  He was later convicted at a general court-martial for this use and another use in December 2002 and sentenced to a bad conduct discharge.

3.  Prior to the sentence of the general court-martial being executed, it was thoroughly reviewed during the Appellate process and found to be correct in law and in fact.

4.  It must be presumed that the applicant's entire military record was considered by his court-martial during his trial.  As such, the bad conduct discharge was the appropriate characterization of service.

5.  His personal statement and character statements that were submitted were considered.  However, those statements contain no matters of mitigation which would warrant upgrading a properly issued discharge.

6.  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.  Therefore, he is not entitled to correction of his records to show a general discharge or an honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.



      ___        XXX                ___
                CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20070007011



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ABCMR Record of Proceedings (cont)                                         AR20070007011



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