MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            21 December 1999                  
	DOCKET NUMBER:   AR1999027877

	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. Hubert O. Fry, Jr.		Chairperson	
	Ms. Meta Waller 		Member	
	Ms. Debra Williams 		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 general.  

APPLICANT STATES:  In effect, that he was a career noncommissioned officer (NCO) who attained the rank of staff sergeant and that he had a solid record of performing his duties with recommendations for promotions.  He contends that while serving in Germany, he worked many long hours and added shifts at the hospital and that several men he worked with introduced him to amphetamines to help him stay awake.  He states that it escalated from there to marijuana and hashish use.  He goes on to state that he sought help for his drug use and was told to “shape up”, that he requested a transfer which was denied and that he believes he could have broken the abuse cycle and finished his career if the Army had afforded him treatment or a transfer.  He also contends that he has tried to maintain a lifestyle that would reflect the integrity and honesty that he displayed in his early military life.  He believes the Army had an obligation to help him considering his career and rank status.  He further states that he lost his career and his life and he should be granted a general discharge.      

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

The applicant was inducted on 28 October 1969.  He trained as a cook, served in Germany and was honorably discharged on 27 October 1971 and transferred to the USAR.  He enlisted on 27 February 1973 and remained on active duty through continuous reenlistments.  

On 8 April 1980, nonjudicial punishment (NJP) was imposed against the applicant for assault.  He received his second NJP on 18 August 1980 for resisting apprehension by a military policeman, behaving with disrespect toward his superior commissioned officer (SCO) and disobeying a lawful command from his SCO.  His punishment consisted of a reduction to E-5, forfeiture of pay and extra duty for 30 days.     

On 4 February 1982, the applicant was convicted by special court-martial (SPCM) of two specifications of possessing hashish, two specifications of transferring hashish, and two specifications of distributing hashish.  His punishment consisted of confinement at hard labor for 5 months, forfeiture of $367.00 pay per month for 5 months, reduction to E-1 and a bad conduct discharge.  The convening authority approved the sentence on 6 April 1982.  The findings and sentence were set aside by the U.S. Court of Military Review because of judicial errors on 16 March 1983.  A rehearing was ordered by the convening authority.   

On 25 July 1983, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He indicated in his request that he understood that he could receive an under other than honorable conditions discharge and that he personally made the choice to submit his request.  Additionally, on his own behalf, he submitted a list of his accomplishments since his discharge.

The unit commander and intermediate commanders recommended approval with an under other than honorable conditions discharge.

On 15 August 1983 the appropriate authority approved the applicant’s request for discharge and directed that he be issued an Under Other Than Honorable Conditions Discharge Certificate.

Accordingly, the applicant was discharged under other than honorable conditions on 23 August 1983 under the provisions of Army Regulation 635-200, chapter
10, in lieu of trial by court-martial.  He had served 12 years, 1 month, and
21 days of total active service and had 127 days of lost time due to AWOL and confinement.

On 4 September 1991 the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge to general.  The ADRB determined that the applicant was properly discharged and denied his appeal on 3 March 1995. 
   
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 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.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

3.  The applicant’s contentions have been noted by the Board.  However, they are not supported by the evidence submitted or the evidence of record.  Evidence of record shows the applicant requested a discharge for the good of the service in order to avoid a trial by court-martial and the possibility of receiving a felony conviction.  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 offenses for which he was charged.     

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

HOF____  MW_____  DW_____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999027877	
SUFFIX		
RECON		
DATE BOARDED	19991221	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	19830823	
DISCHARGE AUTHORITY	AR 635-200 Chapter 10	
DISCHARGE REASON	In lieu of trial by court-martial	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.0200	
2.		
3.		
4.		
5.		
6.