MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:    

	BOARD DATE:           30 December 1998                   
	DOCKET NUMBER:   AC96-10898

	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	
	Mr. Theodore Heartley		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Ms. Sherri V. Ward 		Member	
	Mr. Van B. Cunningham		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 his discharge under other than honorable conditions be upgraded to an honorable discharge.

APPLICANT STATES:  In effect, that he was discharged for one incident of alleged misconduct, failure of a less than 100% accurate urinalysis test; that he had no other violations; and that upgrade of his discharge will help him get a better job and make a better life for his family.

EVIDENCE OF RECORD:  The applicant's military records show:

He enlisted on 16 November 1988 for a period of 4 years.  He completed his initial training at Fort Benning, Georgia and on 3 March 1989, he was assigned to assistant gunner duties at Fort Hood, Texas.

Between 23 August 1989 and 27 December 1989, he was formally counseled 5 times for unsatisfactory duty performance including reporting late for duty; leaving his place of duty; not being at his place of duty; being absent from morning formation; and failure to comply with standards of appearance.

His records contain a letter of indebtedness dated 12 January 1990 from the housing referral office in the amount of $618.54.

A urinalysis test dated 2 April 1990, indicated that he used cocaine and marijuana.

On 22 May 1990, he was charged with the wrongful use of cocaine and marijuana as determined by biochemical testing of his urine sample.

On 30 May 1990, he requested discharge in lieu of trial by court-martial in accordance with Army Regulation 635-200, Chapter 10.  In his request, signed by him, he indicated that he had consulted with an attorney; that his request was of his own free will; and that he was guilty of the charge against him. 

The chain of command recommended approval of his request and on 19 June 1990, the separation authority, a major general, approved his request and directed that he be discharged under other than honorable conditions.

His DD Form 214 shows that he was separated on 10 July 1990 for the good of the service in lieu of trial by court-martial in accordance with the provisions of Army Regulation 635-200, Chapter 10.  He had completed 1 year, 
7 months and 25 days of creditable service with no lost time.  

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

On 4 December 1990, he applied to the Army Discharge Review Board (ADRB) for a discharge upgrade.  He stated in his request that the discharge was inequitable because it was based on an isolated incident.  On 27 October 1992, the ADRB denied his request.  The ADRB stated that the discharge was based on one incident, a willful act of serious misconduct, and that after consulting with legal counsel, he, voluntarily and in writing, requested discharge in lieu of trial by court-martial empowered to adjudge a punitive discharge.  In so doing, he admitted his guilt to the offense for which he was charged.

Documents contained in his records indicate that he was scheduled to appear before the ADRB travel panel on 6 March 1996 to reconsider his discharge upgrade, however, he failed to appear.

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 applicant’s request for discharge upgrade lacks merit when the evidence of record is considered.

2.  The applicant's request for a Chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.  He made his request of his own free will and there is no indication of coercion or duress.

3.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.  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 which 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

________  ________  ________  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

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