MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  26 July 2001
	DOCKET NUMBER:  AR2001052241

	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. Raymond V. O’Connor, Jr. 		Chairperson	
	Mr. Eric N. Anderson		Member	
	Mr. Hubert O. Fry		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 be upgraded to honorable.

APPLICANT STATES:  That the drugs that were found in his room were not his and he was never tested for drug use.  He was not provided counsel nor was it proven that he was using drugs.  He was told he would go to the stockade for 20 years.

COUNSEL CONTENDS:  That the contentions of the applicant reflect the probative facts needed for equitable review and that the Board’s final decision reflect sound, equitable principles on behalf of the applicant.

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

He enlisted and entered active duty on 30 September 1970 at over 20 years of age.  While still in training he was Absent Without Leave (AWOL) for 339 days.  His approved sentence by special court-martial included confinement at hard labor for 5 months.

He was released from confinement on 9 February 1972.  He was AWOL again for 44 days, from 28 March to 10 May 1972.  There is no record of punishment for this AWOL offense.  On 9 August 1972, He was punished under Article 15, of the Uniform Code of Military Justice, for absence from his place of duty.

On 2 November 1972, charges were preferred on the applicant for possession of 180 capsules of LSD and 20 grams of marijuana.  On 9 November 1972, after consulting with counsel, the applicant requested discharge for the good of the service in lieu of trial by court-martial.  His signed statement notes that he had the opportunity to consult with counsel and that appointed counsel had fully advised him of his rights.  The request is counter signed by appointed counsel.

Also in the available record is a second memorandum, dated 9 November 1972, which is also signed by the applicant.  This memorandum states that the applicant was informed of the maximum punishment for his offenses, which could total 10 years confinement at hard labor, total forfeiture of pay, and a dishonorable discharge.  The applicant was also informed that the Army could not force him to request a discharge, but if he received an undesirable discharge, he would be deprived of most or all Federal and state veteran’s benefits.  Additionally, he was informed that he could apply to the Army Discharge Review Board or this Board for an upgrade of his discharge, but that only a small number were approved.

The command Staff Judge Advocate reviewed the request for discharge, noted the applicant’s previous violations, and recommended that the separation authority approve separation with an undesirable discharge.  On 22 November 1972, the separation authority, a major general, approved the applicant’s request and directed separation with an undesirable discharge.

Effective 24 November 1972, the applicant was separated under the authority of Army Regulation 635-200, chapter 10, under conditions other than honorable.  He had 8 months and 29 days creditable service and 510 days lost time.

There is no evidence of record that the applicant filed a request for an upgrade of his discharge with the Army Discharge Review Board within the 15-year time limit.

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 contentions regarding counsel and the notion that he would spend 20 years in the stockade lack credibility given the evidence of record.  The applicant signed two statements concerning the voluntary nature of his request and the extent of advice of counsel.

2.  Neither applicant nor counsel has established error or injustice in the charges preferred for possession of illegal drugs.  The time for the applicant to prove his innocence was prior to his request for discharge in lieu of trial by court-martial. The applicant's 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 and the punitive discharge that he might have received.

3.  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.  There is no indication that the request was made under coercion or duress.

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

__ro____  ___ea__  __hf____  DENY APPLICATION

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

INDEX

CASE ID	AR2001052241	
SUFFIX		
RECON		
DATE BOARDED	20010726	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19721124	
DISCHARGE AUTHORITY	AR 635-200, CH 10	
DISCHARGE REASON	A74.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.02	
2.		
3.		
4.		
5.		
6.