MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           11 October 2001
	DOCKET NUMBER:   AR2001059760

	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:

	Ms. JoAnn H. Langston		Chairperson	
	Mr. Mark D. Manning		Member	
	Mr. Jose A. Martinez		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 under other than honorable conditions (UOTHC) discharge be upgraded. 

APPLICANT STATES:  In effect, that when he was charged with possession of drugs his appointed military lawyer directed him to sign the request for discharge in lieu of trail by court-martial.  He claims that was too young and should not have signed the request for discharge in lieu of trial by court-martial.  He further states that he had no knowledge of the Uniform Code of Military Justice (UCMJ) and was in the wrong place at the wrong time.  In support of his application he submits the following documents:  five letters of support from friends, coworkers and employers; certificates of training and achievement; Personnel Qualification Record (DA Form 2-1); and his separation document (DD Form 214).

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

On 31 May 1977, he enlisted in the Regular Army for 3 years.  He successfully completed training and was awarded military occupational specialty (MOS) 
11B (Infantryman).  His record documents no acts of valor, significant achievement, or service warranting special recognition and it confirms that highest rank he attained while on active duty was specialist/E-4 (SP/E-4).

His disciplinary record includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 19 September 1978 for disobeying a lawful order.

In May 1980, a court-martial charge was preferred against the applicant for wrongfully possessing 20.90 grams of marijuana in the hashish form on or about 
29 February 1980.  

On 7 May 1980, the applicant consulted legal counsel and after being advised of the basis for the contemplated trial by court-martial, the maximum allowable punishment, and the possible effects of an UOTHC discharge, he voluntarily requested discharge in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200.

On 14 May 1980, the appropriate authority approved the applicant’s discharge request and directed he be separated UOTHC and that he be reduced to the lowest enlisted grade.  On 11 July 1980, the applicant was discharged accordingly after having completed a total of 3 years and 11 days of creditable active military service. 

On 9 November 1987, the Army Discharge Review Board determined the applicant’s discharge was proper and equitable and denied his request for an upgrade to his discharge.
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 court-martial charges have been preferred.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

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 he was young and should not have accepted discharge in lieu of trial by court-martial but finds this factor alone is not sufficient to warrant an upgrade of his discharge.

2.  The evidence of record shows that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting counsel and being advised of the basis for the contemplated trial by court-martial, the maximum allowable punishment, and the possible effects of an UOTHC discharge, he voluntarily requested separation in lieu of trial by 
court-martial.  In doing so, he admitted guilt to the stipulated offense under the UCMJ.  

3.  The Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  It also notes that the characterization of service for this type of discharge is normally UOTHC and that the applicant was aware of that prior to requesting discharge.  

4.  Finally, the Board notes that the applicant chose to request an administrative discharge rather than risk the consequences of a court-martial.  Although he may now feel that he made the wrong choice, this is not a sufficient basis for granting the requested relief.  The Board finds the applicant’s characterization of service was appropriate based on his misconduct and that it accurately reflects his overall record of service. 

5.  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.

6.  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

__JHL___  __MDM__  __JAM__  DENY APPLICATION

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

INDEX

CASE ID	AR2001059760	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/10/11	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	19800611	
DISCHARGE AUTHORITY	AR 635-200.  .  .  .  .  	
DISCHARGE REASON	In lieu of trial by Court-martial	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1. 93.01.	74.	
2.		
3.		
4.		
5.		
6.