MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            23 January 2001
	DOCKET NUMBER:   AR2000046216

	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	
	Ms. Deyon D. Battle		Analyst	

The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Thomas E. O’Shaughnessy, 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:  That his discharge under other than honorable conditions be upgraded to an honorable or a general discharge.

APPLICANT STATES:  That he was a witness on behalf of the Army which lead to the conviction of others.  He states that he also cooperated with the Criminal Investigation Division and testified on behalf of the Army during the court-martial proceedings.

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

On 13 September 1990, he enlisted in the Army for 3 years in the pay grade of E-1.  He successfully completed his training as an infantryman.

Charges were preferred against the applicant on 24 March 1992.  He was charged with wrongfully possessing approximately 2 grams of marijuana in the hashish form on four separate occasions; twelve specifications of wrongfully using marijuana in the hashish form with other soldiers, wrongfully possessing approximately one quarter of an ounce of marijuana; three specifications of wrongfully possessing an undetermined amount of marijuana; wrongfully transferring bottles of Jack Daniel Whiskey and cigarettes for an undetermined amount of marijuana in the hashish form and for making false statements under oath.

On 26 March 1992, the applicant was notified of the charges pending against him and, after consulting with counsel, he waived his rights and submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10 for the good of the service in lieu of trial by court-martial.

The request for discharge was approved by the appropriate authority on 16 September 1992.  Accordingly, on 5 October 1992, 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 trial by court-martial.  He had completed 2 years and 23 days of total active service.

On 16 August 2000, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

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 submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the 
individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  There was not then, nor is there now any provisions for an automatic upgrade of such discharges.

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 separation was accomplished in compliance with applicable regulations with no indication of procedural errors, which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.

3.  The applicant’s contentions have been noted by the Board.  However, they are not substantiated by the evidence of record.  The record clearly shows that the applicant had charges pending against him for wrongful possession and use of marijuana as well as other charges.  His request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial, the punitive discharge and the felony conviction that he could have received.  Additionally there have never been any provisions for an automatic upgrade of such discharges.

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 this 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

__wtm___  ___ls____  ___teo__  DENY APPLICATION

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

INDEX

CASE ID	AR2000046216	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/01/23	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1992/10/05	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	689	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  689	144.7000	
2.  717	144.7400	
3.		
4.		
5.		
6.