MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            17 March 1999     
	DOCKET NUMBER:   98-12409
				    AR1998013060

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Ms. Deborah L. Brantley		Analyst	

  The following members, a quorum, were present:

	Mr. Ted S. Kanamine		Chairperson	
	Mr. Orville W. Troesch, Jr.		Member	
	Mr. James P. Steauve		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military  records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That the records of her son, a deceased former service member, be corrected to reflect an honorable discharge.

APPLICANT STATES:  Her son’s use of drugs was the result of depression and he was not allowed to complete his medical treatment prior to his separation nor allowed to withdraw his request for resignation when he learned he was not required to resign as a result of his positive drug urinalysis.  She notes her son died because he gave up after realizing he had not been treated fairly.

EVIDENCE OF RECORD:  The deceased former service member’s military records show:

He served an initial period of active duty between 1974 and 1976 and was then a member of the Army National Guard and USAR until he was commissioned as a second lieutenant in 1980 following completion of ROTC.  He entered active duty as an officer on 22 August 1981 and was assigned to infantry units throughout the duration of his active commissioned service.

He was promoted to captain on 1 December 1984.

His performance evaluation reports generally indicate he performed his duties in a competent manner but was consistently rated at or below center-of-mass by his senior raters.

On 16 August 1988 the former service member tested positive for use of cocaine during a random unit drug urinalysis.  When charges were preferred on 
30 August 1988 the former service member submitted a request for resignation, under the provisions of Army Regulation 635-120, Chapter 5 for the good of the service.  His request acknowledged the fact that he could receive a discharge under other than honorable conditions and the ramification of such a discharge on future benefits.  He also acknowledged the fact that a request for resignation for the good of the service could be withdrawn only with the approval of Headquarters, Department of the Army.

All but his battalion commander supported the service member’s request for separation.  The commanding general of Fort Sill, Oklahoma, the general court-martial convening authority, recommended the service member be discharged but recommended his separation be delayed until completion of an inpatient treatment program at William Beaumont Army Hospital.  The program was scheduled to end on 25 November 1988.

The former service member was admitted to Reynolds Army Community Hospital at Fort Sill, Oklahoma on 27 September 1988 in preparation for air evacuation to William Beaumont Army Medical Center.  On 16 October 1988 the service member submitted a letter to two congressional representatives and the First Lady, Mrs. Reagan, requesting assistance in withdrawing his resignation request so that he could complete a one year non-residential follow-up treatment program.

On 24 October 1988 an Army Ad Hoc Review Board recommendation that the former service member’s request for resignation for the good of the service was approved.

He was released from active duty on 30 November 1988 under other than honorable conditions.  At the time of his discharge he had completed nearly 
10 years of active Federal service, was one month shy of his 34th birthday, and had a master’s degree in business administration.

In 1989 the former service member submitted an application to this Board requesting that his discharge be upgrade.  That application does not appear to have ever been acted on because the Army Discharge Review Board (ADRB) was considering his case.

Although the ADRB noted the service member’s post service successes and abstention from substance abuse it denied his petition to upgrade his discharge in 1992.

On 11 July 1994 the former service member died of cocaine poisoning.

Army Regulation 135-120 establishes the policies and procedure for the resignation and discharge of officers.  Chapter 5 allows for the resignation of officer for the good of the service when charges are preferred against him or her. The tender of resignation for the good of the service does not preclude or suspend disciplinary proceedings in a case.  Whether such proceedings will be held in abeyance pending final action of a resignation is a matter to be determined by the commander exercising general court-martial jurisdiction over the officer concerned.  A resignation for the good of the service is normally accepted as being under other than honorable conditions.

The Manual for Courts-Martial states that the maximum authorized punishment for wrongful use of cocaine is a dishonorable discharge, confinement for 5 years, and total forfeiture of pay.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The former service member’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize is rights.
2.  The applicant is correct that her son was not required to submit a request for resignation but it is highly probable that had he not submitted that request he would have been court-martialed which could have resulted in dismissal from the service and confinement.

3.  The Board notes the former service member was over the age of 30, well educated, and a commissioned officer that was, or should have been, well aware of the ramification of drug use.  While unfortunate it does not excuse his actions. The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.

4.  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 the aforementioned requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__tsk___  __owt___  ___jps__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-12409/AR1998013060	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990317	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1. 110.00		
2.		
3.		
4.		
5.		
6.