MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:           24 June 1999                             
	DOCKET NUMBER:   AR1999015389

	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. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Gary C. Miller		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:  In effect, that his discharge under other than honorable conditions be upgraded.  

APPLICANT STATES:  In effect, that on 4 August 1988 the U.S. Army Court of Military Review set aside the findings of guilty and the sentence of his general court-martial.  As of this date, he has not received any acknowledgement from the U.S. Army.

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

The applicant enlisted on 31 July 1985 for a period of  3 years.  He successfully completed training as was transferred to Fort Wainwright, Alaska, for duty as a cannon crewmember.

On 30 January 1988, while assigned to Alaska, the applicant was convicted by general court-martial of conspiring to purchase marijuana and distribution of marijuana and psilocybin mushrooms.  He was sentenced to a bad conduct discharge, confinement for 9 months, forfeiture of all pay and allowances and reduction to E-1.  On 21 March 1988 the convening authority approved only so much of the sentence as provides for a bad conduct discharge, confinement for
3 months, forfeiture of two-thirds pay per month for 3 months and reduction to
E-1.

On 4 August 1988 the U. S. Army Court of Military Appeals set aside the findings of guilty and the sentence and authorized a rehearing.
 
The facts and circumstances surrounding the applicant’s discharge are not contained in the available records; however, his records show that his application for discharge under the provisions of Army Regulation 635-200, Chapter 10, was approved on 10 February 1989.

On 17 February 1989 the general court-martial charges were dismissed and all rights, privileges and property of which the applicant had been deprived by virtue of the findings of guilty and the sentence so set aside were restored.

On 14 March 1989 the applicant was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service in lieu of court-martial.  He had served 3 years, 7 months and 14 days of total active service.

On 1 June 1999 the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge to general.  His contentions were the same issues he submitted to this Board.  The ADRB determined that the applicant was properly discharged and denied his appeal on 11 June 1999.     

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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

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 Board noted the applicant’s contention that he has not received any acknowledgement from the U.S. Army since the U.S. Army Court of Military Review set aside the findings of guilty and the sentence and authorized a rehearing on 4 August 1988.  However, the evidence of record shows the applicant’s voluntary application for separation under the provisions of Army Regulation 635-200, Chapter 10, was approved on 10 February 1989 and the general court-martial charges were dismissed.     

2.  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.  

3.  Accordingly, the type of discharge directed and the reasons therefore appear to be appropriate considering all of 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

RVO____  GCM____  CLG_____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999015389	
SUFFIX		
RECON		
DATE BOARDED	19990624	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	19890314	
DISCHARGE AUTHORITY	AR 635-200 Chapter 10	
DISCHARGE REASON	FOR THE GOOD OF THE SERVICE IN LIEU OF COURT-MARTIAL	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.0200	
2.		
3.		
4.		
5.		
6.