MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           27 September 2001
	DOCKET NUMBER:   AR2001058860

	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. William Blakely		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Eric N. Andersen		Member	
	Mr. Thomas E. O’Shaughnessy, jr.		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 undesirable discharge (UD) be upgraded to an honorable discharge (HD).  

APPLICANT STATES:  In effect, that his discharge was too harsh considering other soldiers with similar offenses received honorable type discharges.

COUNSEL CONTENDS:  Counsel concurs in the applicant’s presentation and requests that all reasonable doubt be resolved in the applicant’s favor.

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

On 21 June 1972, he entered the Army for 3 years.  He successfully completed training and was assigned overseas to Germany.  His record documents no acts of valor, significant achievement, or service warranting special recognition during his active duty tenure.

The record does show that the highest rank the applicant attained while serving on active duty was specialist/E-4.  It also reveals an extensive disciplinary history that includes his acceptance of nonjudicial punishment (NJP) on 11 March 1975, for having an unauthorized female visitor in his room. 

On 29 March 1975, the applicant was apprehended by the Criminal Investigation Division (CID) for possession of four grams of heroin, which he was in the process of selling to a buyer who was a CID informant. 

On 9 April 1975, the applicant was notified that a court-martial charge was being preferred against him for possession of four grams of heroin.  After consulting with legal counsel and being advised of the basis for the contemplated trial by court-martial, he voluntarily requested to be discharged for the good of the service/in lieu of trial by court-martial, under the provisions of chapter 10, 
Army Regulation 635-200.

On 2 May 1975, the appropriate authority approved the applicant’s separation request and directed that he receive an UD.  On 4 May 1975, the applicant was discharged accordingly, after having served a total of 2 years, 10 months, and 
24 days of total active service.

On 5 May 1980, the Army Discharge Review Board denied the applicant’s request for an upgrade to his discharge after determining it was proper and equitable.

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 UD.

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 Board notes the applicant’s contention that his discharge was too harsh because other soldiers who were separated for similar reasons received honorable type discharges; however, it finds this claim lacks merit.  The type of discharge other soldiers received is not relevant to his case and in accordance with the applicable regulations each case is decided on an individual basis considering the unique facts and circumstances of that particular case.

2.  The Board finds that the applicant, by violating the Army’s drug policy not to possess or use illegal drugs, compromised the special trust and confidence placed in him as a soldier.  By possessing illegal drugs the applicant knowingly risked his military career and this misconduct clearly diminished the quality of his service below that warranting a discharge under honorable conditions.  Therefore, the Board concludes the type of discharge directed was appropriate and accurately reflects the overall character of his service. 

3. The record confirms that the applicant was discharged in lieu of trial by 
court-martial.  Procedurally, this would have required him to consult with legal counsel after being charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  In addition, he would have had to voluntarily request separation after admitting guilt to the stipulated offense under the UCMJ.

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

__RVO___  __ENA__  __TEO__    DENY APPLICATION

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

INDEX

CASE ID	AR2001058860	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/09/27	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	19750514	
DISCHARGE AUTHORITY	AR635-200 	
DISCHARGE REASON	For the good of the service/in lieu of trial by CM	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	71.00	
2.		
3.		
4.		
5.		
6.