MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  27 February 2001
	DOCKET NUMBER:  AR2000049256

	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. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. Melvin H. Meyer		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 under other than honorable conditions discharge be upgraded.

APPLICANT STATES:  In effect, that one member of the Army Discharge Review Board (ADRB) denied both of his previous requests for a discharge upgrade.  He does not believe that he received a fair decision.

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

He enlisted and entered active duty on 27 May 1970.  He was trained as a clerk typist and promoted to the pay grade of E-4 effective 24 February 1971.  On 26 February 1971 he reenlisted and was assigned to Vietnam as a clerk.

On 26 April 1974 he was punished under Article 15, UCMJ for absence from his place of duty and failure to obey a lawful order.  He was punished with a fine and extra duty.  On 17 June 1975 he was punished under Article 15, UCMJ for interfering with the Military Police and assault on a military policeman.  He was punished with a suspended reduction of one grade and extra duty.

On 6 August 1975 charges were preferred for conspiracy to sell Heroin.  On 27 August 1975 an additional charge of possession of Heroin was added.  The charges were the result of an investigation conducted under the provisions of Article 32 of the UCMJ.

On 22 September 1975, after consultation with counsel, the applicant requested discharge for the good of the service in lieu of trial by court-martial.  In his request he acknowledged that he was guilty of the offenses charged and he waived his right to submit a statement in his own behalf.

On 25 September 1975 the separation authority, a lieutenant general, approved the request and directed separation of the applicant in the lowest enlisted grade with issuance of an undesirable discharge certificate.

Effective 9 October 1975 the applicant was discharged under other than honorable conditions in the pay grade of E-1 under the provisions of Army Regulation 635-200, chapter 10.  He had 4 years, 7 months, and 14 days creditable service on the current enlistment.

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.
On 8 February 1989 the Army Discharge Review Board (ADRB), in a unanimous decision, voted to deny the applicant's request for an upgrade of his discharge.  At a 16 May 1991 personal appearance hearing with counsel present the ADRB again voted to deny relief.  One member of this personal appearance board was a voting member of the prior records review.  There is no prohibition in law or regulation to prevent the same ADRB board member(s) from voting on both a records review and a subsequent personal appearance hearing.

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, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  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.

4.  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____  __ra____  ___mm_____  DENY APPLICATION

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

INDEX

CASE ID	AR2000049256	
SUFFIX		
RECON		
DATE BOARDED	20010227	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19751009	
DISCHARGE AUTHORITY	AR 635-200, CH 10	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.02	
2.		
3.		
4.		
5.		
6.