MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           20 September 2001                   
	DOCKET NUMBER:   AR2001057607

	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. Raymond J. Wagner		Chairperson	
	Mr. Kenneth W. Lapin		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 her records be corrected to show the charges of wrongful possession, use, and distribution of a controlled substance be removed from her records.

APPLICANT STATES:  That a background check from a prospective employer turned up the information that she had been under investigation and suspected of wrongful possession, use, and distribution of a controlled substance.  Those charges were dismissed when she was discharged in lieu of trial by court-martial. She was only under suspicion, not guilty, and this should not be on her record.

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

She enlisted in the Regular Army on 3 August 1995.  She completed basic training and advanced individual training and was awarded military occupational specialty (MOS) 91B (Medical Specialist).  She was then assigned for training in MOS 91C (Practical Nurse).

On 17 January 1997, the applicant made a sworn statement to a Criminal Investigation Command (CID) investigator that she had attended a “Rave” party on 7 or 14 December 1996 where she bought and ingested a “hit” of LSD.  On  10 January 1997, while she was on Unit Charge of Quarters duty, she was given two ”hits” of LSD and immediately ingested the LSD.  

On 30 January 1997, court-martial charges were preferred against the applicant charging her with dereliction in the performance of her duties in that she failed to remain in a capacity to properly perform her duties and with two specifications of wrongful use of LSD. 

On 5 February 1997, 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.  She was advised of the implications that were attached to it.  By submitting the request for discharge, she acknowledged that she understood the elements of the offenses charged and was guilty of one or more of the charges against her or of lesser included offenses therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.  

The appropriate authority approved the request and directed the applicant receive a general under honorable conditions discharge.

On 9 April 1997, the applicant was discharged with a general under honorable conditions discharge, in pay grade E-3, under the provisions of Army Regulation 

635-200, chapter 10, discharge in lieu of trial by court-martial.  She had completed 1 year, 8 months, and 7 days of creditable active service and had no 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 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.

Department of Defense Instruction (DODI) 5505.7, 14 May 1992, Titling and Indexing of Subjects of Criminal Investigations in the Department of Defense, states that titling ensures investigators can retrieve information in an ROI of suspected criminal activity at some future time for law enforcement and security purposes.  Titling or indexing alone does not denote any degree of guilt or innocence.  The criteria for titling, simply stated, is if there is reason to investigate, the subject of the investigation should be titled.

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 applicant’s prospective employer most likely obtained the information concerning the investigation from the CID Report of Investigation.  The charges may have been dismissed by action of the convening authority; however, she was properly titled in the Report of Investigation.  In addition, by requesting a chapter 10 discharge she acknowledged that she understood the elements of the offenses charged and was guilty of one or more of the charges against her.  

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

__rjw___  __kwl___  __pm____  DENY APPLICATION

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

INDEX

CASE ID	AR2001057607	
SUFFIX		
RECON		
DATE BOARDED	20010920	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	134.00	
2.		
3.		
4.		
5.		
6.