MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           23 August 2001   
	DOCKET NUMBER:   AR2000051094

	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. Carolyn G. Wade		Analyst	

  The following members, a quorum, were present:

	Mr. John H. Kern		Chairperson	
	Mr. Thomas Lanyi		Member	
	Ms. Paula Mokulis		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 undesirable discharge (UD) be upgraded.

APPLICANT STATES: That he has committed his life to Jesus and is attending church.

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

He enlisted in the Regular Army (RA) on 14 March 1973 for a period of 3 years.  Following the completion of all military training, the applicant was awarded military occupational specialty (MOS) 76Y, Supply Specialist, and was assigned to Germany for his first permanent duty station.  He was honorably discharged on 25 December 1974 for the purpose of immediate reenlistment.  He was credited with 1 year, 9 months, and 12 days of active military service.

On 26 December 1974, the applicant reenlisted in the RA for a period of 4 years continuing in his current duty assignment and MOS 76Y.

On 1 April 1975, United States Army Criminal Investigation [Division] Command (USACIDC) agents and a confidential informant arranged to buy 5 grams of heroin from an individual in Building 40.  The informant was strip searched, given $240.00 in marked money, and entered the building to make the purchase. He met with the person from whom he was to purchase the 5 grams.  The person did not have 5 grams, but there was heroin in the room.  The informant returned to the agents, then he returned to the room in the barracks, bought 4 packets of heroin, and again returned to the USACIDC agents.  The informant identified the applicant as the person who sold him the heroin.  During a search of the occupants of the room conducted at the direction of the unit commander, $20.00 in marked money was found in the possession of the accused.

On 2 April 1975, the applicant was charged with wrongfully and unlawfully selling 4 packets of an undetermined amount of heroin, a habit forming and dangerous narcotic drug.

On 6 April 1975, the applicant was notified by an investigating officer that he would be investigating, under the provisions of Article 32b, Uniform Code of Military Justice (UCMJ), the facts and circumstances concerning the charges preferred against him by his unit commander.  He was advised of his rights.  On 8 April 1975, the Article 32b investigation was held.  After questioning the witnesses and the applicant, the investigator recommended the applicant be tried by general court-martial.

On 10 April 1975, the applicant’s chain of command recommended trial by general court-martial.

On 5 May 1975, after consulting with counsel about his rights, the applicant requested discharge under the provisions of chapter 10, Army Regulation (AR) 635-200, for the good of the service in lieu of trial by court-martial.  The chain of command recommended approval of the applicant’s request for discharge with a UD.

On 6 May 1975, the Staff Judge Advocate stated that there was no legal objection to approving the applicant’s request for discharge under the provisions of chapter 10 with a UD. 

On 6 May 1975, the appropriate authority approved the applicant’s request for discharge and directed issuance of a UD.  Accordingly, on 27 May 1975, the applicant was discharged from the Army after completing 5 months and 2 days of creditable military service and a total time-in-service of 2 years, 2 months, and 14 days.

AR 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 a UD.

The applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade.  The applicant and his counsel personally appeared before the ADRB and, after considering his case on 21 July 1982, the ADRB denied his request.

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.  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.

2.  The applicant’s administrative discharge under the provisions of chapter 10, AR 635-200 in lieu of trial by court-martial was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.

3.  The applicant, by violating the Army's policy not to possess, sell, or use illegal drugs, compromised the trust and confidence placed in him.  The applicant, as a soldier, had the duty to support and abide by the Army's drug policies.  By selling illegal drugs, the applicant knowingly risked a military career and diminished the quality of his service below that meriting a general or fully honorable discharge.

4.  Although the Board is sympathetic to the applicant’s desire to upgrade his discharge and commends his post service accomplishments, these accomplishments do not provide the Board a basis upon which to grant relief.

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

__JHK___  ___TL__  ___PM  __  DENY APPLICATION

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

INDEX

CASE ID	AR2000051094	
SUFFIX		
RECON		
DATE BOARDED	20010823	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19750527	
DISCHARGE AUTHORITY	AR 635-200 c10	
DISCHARGE REASON	In lieu of trial by court-martial	
BOARD DECISION	DENY	
REVIEW AUTHORITY	Director	
ISSUES         1.	144.9405	
2.		
3.		
4.		
5.		
6.