MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            14 July 1999
	DOCKET NUMBER:   AR1998013938

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Mr. Ernest M. Willcher		Member	
	Mr. John Saputo		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 desires to have his discharge upgraded.

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

The applicant enlisted in Beckley, West Virginia on 16 August 1976 for a period of 4 years, airborne and heavy construction equipment operator training.  He successfully completed his basic and advanced training but was withdrawn from airborne training due to lack of motivation.

Upon completion of his training he was transferred to Germany and was promoted to the pay grade of E-3 on 1 January 1978.  He was married on 16 May 1979 and served in Germany until 24 May 1979 when he was transferred to Fort Carson, Colorado.  He remained at Fort Carson and was promoted to the pay grade of E-4 on 1 June 1980.

On 17 July 1980 the applicant reenlisted for a period of 3 years, assignment to Europe, and payment of a selective reenlistment bonus.  He was transferred to Germany on 24 January 1981 and was assigned to the same battalion as he had served in his previous tour.

The applicant was apprehended by military policeman and charged with possession of prohibited items (locked blade knife and marijuana/hashish) on 23 October 1981.  However, because he was not tried within 45 days, the charges were vacated.

On 8 June 1982 nonjudicial punishment (NJP) was imposed against the applicant for being disrespectful towards a superior commissioned officer (a major), for disobeying a lawful order from a superior commissioned officer, for wrongful possession of 5 grams, more or less, of marijuana in hashish form, for operating a motor vehicle in a drunk and erratic manner, and for operating a motor vehicle without a driver’s license in his possession.  His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of pay, and extra duty and restriction for 45 days.

On 12 August 1982 the applicant’s commander initiated a bar to reenlistment against the applicant.  He cited as the basis for his recommendation the fact that NJP had been imposed against the applicant on two occasions, the vacated charges, his possession of drugs, and his failure to respond to numerous counseling sessions.

The applicant elected to submit a statement in his own behalf whereas he indicated that he deserved anything the commander imposed against him because he knew that he should have continued to soldier despite the fact that his wife filed for divorce in Germany 25 days prior to his arrival.  He further indicated that he knew he was wrong but that he just did not care and did it anyways.

The appropriate authority approved the bar to reenlistment on 7 September 1982.

The applicant was apprehended by a uniformed patrol of the Auerbach State Police (German polizei) on 18 August 1982 and was charged with possession of 104.5 grams, more or less, or marijuana in hashish form.  The applicant was returned to military authorities and charges were preferred against him after his rights were read and the evidence had been analyzed.

The applicant was also advised of his rights by Criminal Investigative Division (CID) agents and he was questioned by those officials.  He admitted to possession of, use of drugs, and intent to sell some of the drugs.  Charges were preferred against the applicant for the wrongful use, possession, and sale of marijuana (hashish).

Although the facts and circumstances surrounding his discharge are not present in the available records, his records show that he was discharged under other than honorable conditions on 17 March 1983 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 6 years, 7 months, and 2 days of total active service.

There is no indication in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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 at any time after charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A condition of such a request is that the individual must state that they have been counseled and that they understand the consequences of their request and the effect that a discharge under other than honorable conditions may have on their benefits as well as the influence it may have in civilian life.  A discharge under other than honorable conditions is normally considered appropriate.

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.  In the absence of evidence to the contrary, it must be presumed that the applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by  court-martial, was administratively correct and in conformance with applicable regulations.

2.  Accordingly, it must also be presumed that the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  The applicant’s contentions have been noted by the Board and appear to be without merit.  A request for discharge under Army Regulation 635-200, chapter 10, in lieu of trial by court-martial requires a voluntary request on the part of the individual concerned.  Accordingly, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records.

4.  While he may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date, especially considering the seriousness of the charges against him. 

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

___js ___  __ew ___  __sac ___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1998013938	
SUFFIX		
RECON		
DATE BOARDED	1999/07/14	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1983/03/17	
DISCHARGE AUTHORITY	AR 635-200, CH10	
DISCHARGE REASON	IN LIEU OF TRIAL BY CM	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  689 	144.7000/A70.00/GOOD OF THE SVC	
2.  717 	144.7400/A74.00/DRUGS	
3.		
4.		
5.		
6.