RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        16 October 2007
      DOCKET NUMBER:  AR20070006673


      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             |
|     |Ms. Deyon D. Battle               |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Shirley L. Powell             |     |Chairperson          |
|     |Mr. James E. Anderholm            |     |Member               |
|     |Mr. Joe R. Schroeder              |     |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 reconsideration of his previous request that his
bad conduct discharge be upgraded to an honorable or a general discharge.

2.  The applicant states that he performed his duties above reproach and
that it was not until he started suffering from an undiagnosed mental
disorder that he began having problems.  He states that substance abuse is
the leading factor in Post Traumatic Stress Disorder, which is becoming
more common in Soldiers and that the problem is not being addressed by the
chain of command.  He states that a Soldier is seen as damaged goods and
quickly processed out of the military before getting proper treatment.  He
states that he Soldiered hard while he was on active duty and that he did
not receive a separation physical or his separation pay.  He states that he
has a family to take care of and that is the reason he is requesting an
upgrade of his discharge.  He states that he desires to find suitable
employment and that he has rehabilitated himself.

3.  The applicant provides in support of his application, a letter from
Program Support Assistance dated 8 January 2007; an undated letter from a
Readjustment Counseling Therapist at the Department of Veterans Affairs
Medical Center (VAMC), Veterans Addiction Recovery Center; a letter from an
employee at the VAMC dated 15 December 2006; and a letter from a
rehabilitation technician dated 13 December 2006 all attesting to his good
character and post service conduct.  He also submits a Certificate of
Completion from VA Healthcare System of Ohio for successful completion of
"The Customer".

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
Army Board for Correction of Military Records (ABCMR) in Docket Number
AR20060013790, on 19 April 2007.

2.  On 9 June 1987, the applicant enlisted in the Army for 3 years.  He
successfully completed his training as a patriot launching station enhanced
operator/maintainer.  He remained on active duty through a series of
reenlistments.



3.  On 20 April 2001, the applicant was barred from reenlistment under the
Qualitative Management Program (QMP).  An Enlisted Evaluation Report for
the period covering 1 September 1998 to 28 February 1999, which identified
a deficiency in the applicant's performance, was cited as the basis for the
bar to reenlistment.

4.  On 16 May 2002, the applicant was furnished a memorandum of reprimand
(MOR) for driving while intoxicated.  He was informed that this reprimand
was imposed as an administrative measure and not as nonjudicial punishment
(NJP) under Article 15, Uniform code of Military Justice.

5.  The applicant was convicted by a special court-martial on 16 May 2002,
for wrongful use of cocaine between 6 November and 13 November 2001 and
19 March and 26 March 2002.  He was sentenced to confinement for 30 days, a
reduction in pay grade, and a bad conduct discharge.

6.  The convening authority approved the sentence as adjudged and on
10 September 2002, the United States Army Court of Criminal Appeals
affirmed the findings and sentence as approved by the convening authority.

7.  Accordingly, on 22 January 2003, the applicant was discharged under the
provisions of Army Regulation 635-200, chapter 3, as a result of a duly
reviewed and affirmed special court-martial conviction.  The applicant was
issued a Bad Conduct Discharge.

8.  On 19 April 2005, the Army Discharge Review Board denied the
applicant's request for an upgrade of his discharge.

9.  On 29 November 2005, the applicant was granted entitlement to a
     non-service connected pension effective 29 November 2005.

10.  The applicant's medical records are not available for review.  The
letters that he now submits in support of his application are from
individuals attesting to his good character and post-service conduct.

11.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 3, paragraph 3-11 provides that
a Soldier will be given a BCD pursuant only to an approved sentence of a
general or special court-martial.  The appellate review must be completed
and the affirmed sentence duly executed.


12.  Title 10, United Stated Code, section 1552, the authority under which
this Board acts, provides, in pertinent part, that the Army Board for
Correction of Military Records 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
modify 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 type of discharge directed and the reasons therefore appear to be
appropriate considering the facts of the case.

3.  The Board has noted the applicant’s contentions.  The letters attesting
to his good character have also been noted.  However, they are not
sufficiently mitigating to warrant the relief requested when compared to
the seriousness of his offenses.  He had NJP imposed against him for
wrongful use of cocaine.  He was convicted by a special court-martial as a
result of his act of misconduct.  Additionally, he was furnished an MOR for
driving while intoxicated.  Considering the nature of his offenses it does
not appear that his Bad Conduct Discharge was unfair or too harsh.

4.  The applicant was discharged as a result of his court-martial
conviction.  He was not entitled to any separation pay and he has provided
no evidence to show that the action taken by the Army at the time of his
discharge jeopardized his rights.  In the absence of evidence to the
contrary, it must be presumed that what the Army did in his case was
correct.

5.  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.

6.  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

__JRS___  __JEA___  __SLP__  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 to amend the decision of
the ABCMR set forth in Docket Number AR20060013790, dated 19 April 2007.




                                  _____Shirley L. Powell_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070006673                           |
|SUFFIX                  |                                        |
|RECON                   |20070419                                |
|DATE BOARDED            |20071016                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  675  |144.6800/BCD                            |
|2.  678                 |144.6803/SERIOUS OFFENSE                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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