MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:    

	BOARD DATE:           14 May 2002
	DOCKET NUMBER:   AR200165845

	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. Carolyn G. Wade		Analyst	

  The following members, a quorum, were present:

	Mr. Melvin H. Meyer		Chairperson	
	Ms. Kathleen A. Newman		Member	
	Mr. Donald P. Hupman		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 honorable.

APPLICANT STATES:  That he has prior honorable discharges from both the Regular Army (RA) and the United States Marine Corps (USMC).  He also states he was not afforded counsel.

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

He enlisted in the RA on 18 October 1967 and, following completion of all military training, he was awarded military occupational specialty (MOS) 31M, Radio Relay Carrier Attendant.  He served honorably until he was transferred to the United States Army Reserve (USAR) on 30 May 1969.  He was credited with 1 year, 7 months, and 13 days of active military service.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows the following awards and decorations: the National Defense Service Medal, Republic of Vietnam Campaign Medal, Vietnam Service Medal, two Overseas Service Bars, and the Expert Marksmanship Badge (M-16 Rifle).

On 10 September 1969, the applicant enlisted in the USMC and served honorably until he was discharged on 9 March 1971.  He was credited with 1 year and 6 months of active military service and a total of 3 years, 4 months, and 22 days of total time in service.

On 29 September 1971, the applicant enlisted in the RA for a period of 4 years.  The applicant continued to serve in MOS 31M and was assigned to Germany as his permanent duty station.

On 20 February 1973, the applicant was charged with one specification of violating Article 92, Uniform Code of Military Justice (UCMJ), by wrongfully possessing a controlled substance.  He was also charged with two specifications of violating Article 134, UCMJ, by (1) wrongfully, and with intent to deceive, using a DD Form 1172 (Application for Uniformed Services Identification and Privilege Card) to obtain an ID card for his wife, and (2) wrongfully having in his possession a spoon containing residue of a habit forming narcotic drug, to wit: morphine.

On 20 February 1973, the applicant's chain of command also recommended trial by court-martial empowered to adjudge a BCD (bad conduct discharge) and counsel advised the applicant of his rights and the consequences of requesting discharge under the provisions of chapter 10, Army Regulation (AR) 635-200.  After consulting with counsel about his rights, the applicant voluntarily, and in writing, requested discharge under the provisions of chapter 10, AR 635-200, for the good of the service in lieu of trial by court-martial.  

The applicant did not submit a statement in his own behalf.  The chain of command recommended disapproval of the applicant’s request for discharge under the provisions of chapter 10.

On 27 March 1973, the commander of V Corps approved the applicant’s request for discharge and directed issuance of a UD.  Accordingly, on 2 April 1973, the applicant was discharged from the Army after completing 1 year, 6 months, and 4 days of creditable military service.

The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his UD.  The ADRB considered the applicant’s case and denied relief on 9 June 1976. 

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.  Although an honorable or general discharge is authorized, 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 Board noted that, after consulting with defense counsel, the applicant voluntarily, and in writing, requested separation from the Army in lieu of trial by court-martial.  In doing so, the applicant admitted guilt to the stipulated offenses under the UCMJ.  The Board was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

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.  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.
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

___dhp__  ___kan __  ___mhm_  DENY APPLICATION

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

INDEX

CASE ID	AR2001065845	
SUFFIX		
RECON		
DATE BOARDED	20020514	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19730402	
DISCHARGE AUTHORITY	AR 635-200, chapter 10	
DISCHARGE REASON	For the good of the service	
BOARD DECISION	DENY	
REVIEW AUTHORITY	Director	
ISSUES         1.	144.9405	
2.		
3.		
4.		
5.		
6.