MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            20 June 2000
	DOCKET NUMBER:   AR1999028602

	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. Carl W. S. Chun		Director	
	Mr. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Van B. Cunningham		Chairperson	
	Mr. James E. Anderholm		Member	
	Mr. Ernest W. Lutz, Jr.		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 general discharge be upgraded to an honorable discharge.

APPLICANT STATES:  That he performed all of his duties in an exemplary manner, with no safety violations, no damage or loss of government property, no security violations, and no dereliction of duty.  He goes on to state that he tested positive for marijuana, an act for which he regrets and was unbecoming of him and for which he was offered two choices; trial by court-martial with a felony conviction or accept a chapter discharge without a felony conviction.  He goes on to state that he did not know that the discharge came with a dishonorable discharge or he would have accepted a trial by court-martial.  He continues by stating that he was under a great deal of stress because while serving in Saudi Arabia he lost his home and shortly after he returned his father had a stroke and subsequently died.  He also states that his wife was an alcoholic who was stressed out by taking care of two children, that he was being threatened with divorce, and was preparing to depart for Somalia.  On the weekend prior to testing he smoked marijuana and tested positive.  He continues by stating that he realizes that he made a foolish mistake that has cost him dearly, that he has completed a successful rehabilitation program at Fort McPherson, Georgia, that the good Lord has helped to save his marriage and cure his wife’s alcoholism, and that he hopes the Board will find favor in his request for an upgrade of his discharge.

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

The applicant was commissioned as a USAR second lieutenant on 10 June 1983 and entered active duty on 3 April 1985.  He was promoted to the rank of captain on 1 May 1989 and accepted a Regular Army appointment on 22 February 1991. 

On 12 April 1993 charges were preferred against him for the unlawful use of marijuana between the period of 11 February to 22 February 1993.  He was referred to trial by a general court-martial and elected to tender his resignation for the good of the service on 21 April 1993, in lieu of trial by court-martial.

On 11 May 1993, the Department of the Army Ad Hoc Review Board recommended that his resignation for the good of the service be approved and that he be discharged under other than honorable conditions.  The Deputy Assistant Secretary (Army Review Boards) approved the findings and recommendations of the Army Ad Hoc Review Board on 24 May 1993.

Accordingly, he was discharged under other than honorable conditions on 21 June 1993, under the provisions of Army Regulation 635-120, chapter 5, due to conduct triable by court-martial.  He had served 8 years, 2 months, and 19 days of total active service.

A review of the applicant’s records failed to reveal any other derogatory information and shows that he had served as a commander and that he was essentially a center of mass officer.

He applied to the Army Discharge Review Board (ADRB) on 11 January 2000 for an upgrade of his discharge.  He cited essentially the same reasons for an upgrade of his discharge to that board as he has to this Board.  The ADRB opined that the length and quality of his service mitigated his conduct and voted unanimously to upgrade his discharge to a general discharge.

Army Regulation 635-120 serves as the authority for the resignation of officers for the good of the service.  It states, in pertinent part, that an officer may submit a resignation for the good of the service when court-martial charges have been preferred against the officer with a view towards trial by a general court-martial.  Commanders will ensure that the officer concerned is afforded legal counsel and that there is no element of coercion in submitting a resignation for the good of the service.  Requests for Resignations will be prepared in accordance with figure   5-1 and will include acknowledgements that they have not been coerced with respect to the resignation, that they understand the implications attached to such an action, to include the effects of a discharge under honorable conditions, that they have been afforded the opportunity to present matters in their own defense, and the fact that they have consulted with counsel.  That regulation also provides that regardless of the type of discharge issued, an officer whose resignation for the good of the service is accepted, shall be barred from all rights under laws administered by the Department of Veterans Affairs based on the period of service from which separated.  

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 administrative discharge proceedings were conducted in accordance with law and regulations in effect with no indication of any violations of any of the applicant’s rights.

2.  By the applicant’s own admission, he was guilty of the offense for which he was charged and chose to request an administrative discharge (Resignation) rather than risk the consequences of a court-martial.  Although he may now feel that he made the wrong choice, he should not be allowed to change his mind at this late date.

3.  In view of the seriousness of the charges against him, the type of discharge directed and the reasons therefor were appropriate considering all of the available facts of the case.

4.  A condition of submitting a resignation for the good of the service is that the individual concerned must acknowledge that they understand that they may be discharged under other than honorable conditions and that they understand the effects of such a discharge.  He was a commissioned officer who chose to request an administrative discharge rather than risk the consequences of a trial by court-martial and the punitive discharge that could have resulted therefrom.

5.  The applicant’s contentions that his discharge was inequitable due to the extenuating/mitigating circumstances and his overall record of service, appears to be without merit.  The applicant knowingly violated the trust and confidence placed in him as a commissioned officer by wrongfully using illegal drugs; an offense that he has readily admitted to.  

6.  The applicant’s contention that he would have accepted trial by court-martial had he known that he would receive a dishonorable discharge as a result of his resignation is without merit.  There is a distinct difference between a discharge under honorable conditions (also previously known as an undesirable discharge) and a punitive discharge (bad conduct or dishonorable) issued as a result of trial by court-martial.  As a commissioned officer and former commander not only should the applicant been aware of the differences, he should also have been aware that his counsel could have clarified anything he did not understand in regards to the effects of such a discharge.

7.  Careful consideration has been given to the applicant’s claims of post-service accomplishments as well as his overall record of service.  However, the actions of the applicant, coupled with the seriousness of the charges against him, militate against relief beyond what has been granted by the ADRB.

8.  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

____ja __  ___ewl __  ___vbc__  DENY APPLICATION

						Carl W.S. Chun
			Director, Army Board for Correction
                                                               of Military Records 

INDEX

CASE ID	AR1999028602	
SUFFIX		
RECON		
DATE BOARDED	2000/06/20	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1993/06/21	
DISCHARGE AUTHORITY	AR635-120	
DISCHARGE REASON	732/RESIGNATION	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  689	144.7000/A70.00	
2.  732	144.8000/A80.00	
3.		
4.		
5.		
6.