MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            28 January 1999
	DOCKET NUMBER:   AC98-10690/AR1998012014

	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. Paul A. Petty		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. Robert W. Garrett		Member	
	Mr. Curtis L. Greenway		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 Article 15 of about 16 March 1992 be expunged from the record; that his administrative discharge of 10 September 1992 be set aside; and that his General Discharge be upgraded and the reason and authority be changed.

APPLICANT STATES:  That the Article 15 and administrative discharge were unjust because he was provided no opportunity to consult with counsel and he did not commit an offense.

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

That he enlisted in the Army Reserves on 27 April 1988 for an eight year obligation.  He completed training and was assigned in the active reserves as a watercraft operator.  He achieved the grade of PV2.

On 18 October 1990, he enlisted in the Regular Army for a four year term of service in the infantry.  He completed one station unit training for infantry and was assigned as an infantryman to Fort Polk on 9 January 1991.  He advanced to the grade of E-3.

On 22 October 1991, the applicant was arrested by the Army Criminal Investigation Division (CID) on suspicion of two counts of wrongful possession, use, and distribution of a controlled substance; attempts to sell an illegal drug; and larceny in taking money from a undercover CID agent when selling him a supposed illegal drug.  Undercover CID agents and an informant approached the applicant on two separate occasions (10 august 1991 and 23 August 1991).  They asked the applicant if he had marijuana for sale.  The applicant sold them bags of supposed drugs (leafy vegetable matter) and took payment from the undercover agent for the supposed drugs.  The vegetable material was tested and found to contain no illegal drugs but the applicant had sold the material purporting that it was an illegal drug (marijuana).  After being given his rights, the applicant volunteered in interview by CID that he had used marijuana and LSD.

On 16 March 1992, the applicant was given an Article 15 non-judicial punishment for two violations of the Uniform Code of Military Justice (UCMJ): Article 80, attempt to commit an offense by selling illegal drugs in that the applicant represented himself as selling illegal drugs in spite of the fact that the material when tested did not contain drugs; and Article 121, larceny, in that the applicant accepted and kept government funds from the undercover CID agent in payment for the purported drugs.  The applicant was informed and given the opportunity to exercise his rights to receive counsel, the right to trial by court-martial or to accept the Article 15, to request an open hearing, to request a person to speak

on his behalf, and present matters in his defense, mitigation, and/or extenuation. The applicant elected to accept the Article 15 which considered the evidence and found him to be guilty of the charged misconduct.  Consequent punishment was imposed of reduction to E-2, forfeiture of pay, and extra duty and restriction for 45 days.  The applicant exercised his right and appealed the Article 15. The Article 15 was reviewed by a legal officer and a superior commander.  They both found the evidence, procedure, protection of rights, and punishment to be correct and just and the appeal was denied.  Due to these violations, a Bar to Reenlistment was also imposed on the applicant.

On 17 August 1992, an administrative separation action was initiated on the applicant for misconduct - commission of a serious offense for attempted distribution of a controlled substance and use of a controlled substance.  The applicant was informed of his rights by his commander and a legal officer: the right to counsel, the right to have copies of documents that support the reasons for his discharge, and to submit statements on his own behalf.  The applicant consulted with counsel and waived all the other rights as indicated by his signature and that of the legal officer who counseled with him.  The discharge recommendation was reviewed by a legal officer and found to be correct and just based on the evidence.  The discharge authority considered all evidence, recommendations, and legal review, and directed that the applicant be given a general discharge, denied transfer to the Individual Ready Reserve, and denied rehabilitative transfer.  The applicant was so discharged on 9 October 1992.

Violation of Article 80, UCMJ, Attempts, is an act, done with specific intent to commit an offense even though failing to effect its commission, is an attempt to commit that offense.

Violation of Article 121, UCMJ, Larceny, is an act by any person who wrongfully takes, obtains, or withholds, by any means, from the possession of the owner or of any other person any money of any kind with intent to permanently deprive or defraud another person of the use and benefit of the money, steals that money and is guilty of larceny.

AR 635-200, Enlisted Personnel, paragraph 14-12c, Separation for Misconduct - commission of a serious offense, shows that drug offenses are a serious offense subject to separation and that enlisted soldiers found to be a two time drug offender must be separated according to this regulation.  Additionally, a drug offense combined with one or more other disciplinary infractions may constitute grounds for separation under this paragraph.

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 Article 15 was properly administered.  The applicant was afforded his rights to counsel; to review evidence against him; to request a court-marital to try his case with a judge, jury, and defense counsel; to have an open Article 15 hearing; to present evidence in his defense and to be represented by counsel or to speak for himself.  The applicant choose to accept the Article 15 punishment.   He was given the right to appeal his punishment which he exercised.  The appeal was given legal and command consideration and denied as having no grounds to justify appeal.  The charges were correct in that he did attempt to sell or represented that he was selling an illegal drug according to the definition of the UCMJ.  He did defraud the government out of money which is larceny according to the definition of the UCMJ.  His punishment was equitable within the limits of the UCMJ.

2.  The administrative discharge was properly administered.  The applicant admitted to using illegal drugs, he attempted to sell illegal drugs, and he did commit larceny.  The applicant was advised of his rights to counsel, the right to have copies of documents that support the reasons for discharge,  and to present evidence and statements on his own behalf.  He was counseled by a legal officer where these rights were explained in writing and the applicant signed stating that he understood his rights.  He elected not to submit a statement on his own behalf or request a administrative separation board by his own signature and initials.  The applicant was properly given a general discharge based on misconduct with consideration for his full military record.

3.  Based on the properly administered and approved discharge, the DD Form 214, Certificate of Release or Discharge from Active Duty, is correctly completed as to boxes 24-28: Character of Service, Separation Authority, Separation Code, Reentry Code, and Narrative Reason for Separation.

4.  The record does not contain any evidence nor has the applicant submitted any evidence to prove his contention of error or injustice.  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

_LLS____  RWG ___  _CLG ___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-10690/AR1998012014	
SUFFIX		
RECON		
DATE BOARDED	19990128	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19921009	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	126.00	
2.		
3.		
4.		
5.		
6.