MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           31 July 2001                   
	DOCKET NUMBER:   AR2001057474

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Walter T. Morrison		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. John T. Meixell		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 (UOTHC) be upgraded.

APPLICANT STATES:  That the incident did not justify him being given a discharge UOTHC as he had been serving honorably up until that time.  He was 17 years old and easily influenced by others.  These people introduced him to drugs and alcohol.  He became an alcoholic and drug addict.  Two years later, while in a nightclub, a woman came over and asked him if he wanted a date.  After trying to say no, he eventually asked “how much” and said “OK.”  They went to her place, he gave her $10.00 and he lit a marijuana cigarette.  At that point she told him to leave and would not return his money.  He grabbed her and turned her upside down trying to shake his money loose.  At that time the MPs came.  Before this incident he had asked for help for his addiction.  However, the Army failed to support his need for help after he got into trouble.  Three years ago he became a born again Christian.  He is very sorry for his past behavior.  Supporting evidence is as listed on the DD Form 149.

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

He was born on 24 May 1958.  He enlisted in the Regular Army on 23 March 1976.  He completed basic training and advanced individual training and was awarded military occupational specialty 94B (Food Service Specialist).

On 5 May 1977, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 12 to on or about 19 April 1977.

On 24 March 1978, the applicant accepted NJP under Article 15, UCMJ for absenting himself from his place of duty and disobeying a lawful order.  

On 27 March 1978, the applicant voluntarily referred himself to the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP).

On 31 May 1978, the applicant was arrested for suspicion of possession of marijuana.

On 12 June 1978, action was initiated to separate the applicant under the provisions of Army Regulation 635-200, chapter 9 as a drug/alcohol rehabilitative failure.  This action was approved on 30 June 1978. 

The incidents that led to the court-martial charges occurred on 2/3 July 1978.

On 7 July 1978, court-martial charges were preferred against the applicant charging him with one specification of wrongful possession of marijuana; one specification of wrongful use of marijuana; one specification of wrongful transfer of marijuana; three specifications of breaking restriction; one specification of assault by grabbing a woman by the legs, holding her upside down and stamping her in the chest and face with his feet, and holding her by her hair and beating her head against the floor; one specification of assault by placing a drinking glass upside down on a woman’s ear, while her head was on the floor, and stamping on it with his foot; one specification of assault by kicking a woman on the leg with his foot; one specification of wrongful possession of methamphetamine; one specification of wrongful use of methamphetamine; one specification of wrongful transfer of methamphetamine; and one specification of failing to go to his appointed place of duty.

On 19 July 1978, after consulting with legal counsel, the applicant voluntarily requested a 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 applicant was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and Veterans Administration benefits.  He checked that he submitted a statement in his own behalf but no statement is available.

On 20 July 1978, additional court-martial charges were preferred against the applicant charging him one specification of attempting to steal $10.00 by means of force and violence; one specification of breaking curfew restrictions; and one specification of resisting arrest. 

On 26 July 1978, the approved chapter 9 discharge was withdrawn.

On 27 July 1978, the appropriate authority approved the applicant’s request for discharge in lieu of court-martial and directed he receive a discharge UOTHC.

On 2 August 1978, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with a discharge UOTHC.  He had completed 2 years, 4 months, and 3 days of creditable active service and had 7 days of lost time.

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.  The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  A discharge under other than honorable conditions is normally considered appropriate.  

On 21 February 1980, the Army Discharge Review Board denied the applicant’s request for an upgraded 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.  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 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.

3.  The evidence of record shows that the applicant had not served honorably up until the time of the incident for which he was discharged.  The evidence of record shows that the Army gave him a chance to rehabilitate his addictions and he was determined to be a rehabilitative failure prior to the incident which led to his chapter 10 request.

4.  The Board is cognizant of the fact that the applicant was 17 years old at the time of his enlistment.  However, hundreds of 17 year olds have served honorably over the years without getting involved with illegal substances or other misconduct.  The evidence of record shows that the incident with the woman involved a far more severe beating than the applicant recalls.  Given the seriousness of the offenses charged, the type of discharge given was appropriate.

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___  __aao___  __jtm___  DENY APPLICATION

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

INDEX

CASE ID	AR2001057474	
SUFFIX		
RECON		
DATE BOARDED	20010731	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19780802	
DISCHARGE AUTHORITY	AR 635-200, ch 10	
DISCHARGE REASON	A70.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.