MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            25 June 2002
	DOCKET NUMBER:   AR2002069502

	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	
	Ms. Beverly A. Young		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Elzey J. Arledge		Member	
	Mr. Thomas Lanyi		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:  Reconsideration of his earlier appeal to correct his  military records by upgrading his under other than honorable conditions (UOTHC) discharge to a general discharge.

APPLICANT STATES:  In effect, that he wants his UOTHC discharge upgraded to a general discharge because he previously had two honorable discharges.  He believes that his record is in error or unjust because of "undue stress and injustice" and he was made to be an example for others.  He states that, at the time of the alleged error or injustice, he did not know that he could appeal for correction of his records.  The applicant submitted two applications for the Army Board for Correction of Military Records (ABCMR) and an application for the Army Discharge Review Board (ADRB).  

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in the decisional document prepared to reflect consideration by the ABCMR of Docket Number AR1999026395 on 9 November 1999.

The applicant’s contentions regarding his discharge are new arguments which will be considered by this Board.

The applicant entered active duty on 3 February 1966 for a period of three years, completed training as a stenographer and was honorably discharged on 12 February 1968 for the convenience of the Government.  

He reenlisted on 13 February 1968 for a period of four years and was honorably discharged on 12 February 1972 at his expiration of term of service.  On 13 February 1972, the applicant reenlisted for a period of six years.

Records show that the applicant was convicted by a special court-martial on 15 May 1974 of wrongfully possessing marijuana in the hashish form and wrongfully possessing eleven tablets of Mandrax.

On 3 January 1975, a military police investigator searched the applicant's room and found a film canister containing suspected heroin and various other film canisters containing marijuana in hashish form and pipe paraphernalia.

On 14 January 1975, the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) counselor recommended the applicant be declared a rehabilitation failure.

Charges were preferred against the applicant on 14 January 1975 for wrongfully possessing 0.39 grams, more or less, of heroin and 5 grams, more or less, of marijuana in hashish form.
On 28 January 1975, the applicant consulted with legal counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10 of Army Regulation 635-200.  The applicant did not submit a statement in his own behalf.

On 11 February 1975, the separation authority approved the applicant’s request for discharge and directed that an Undesirable Discharge Certificate be issued.
Accordingly, the applicant was discharged on 18 February 1975 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  

There is no indication in the available records to show that the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

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. 

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 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.

2.  The applicant's request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.

3.  The Board considered the applicant's statement that his UOTHC discharge should be upgraded because he previously had two honorable discharges.  However, records show that the applicant received a special court-martial, was declared a rehabilitation failure by an ADAPCP counselor, and was charged with possession of heroin and marijuana in hashish form during his last period of service.  

4.  The Board considered the applicant's contentions that his record is in error because of "undue stress and injustice" and he was made to be an example for others.  However, the applicant has not presented any evidence that the discharge process was flawed, in error or unjust.  Therefore, there is no basis for upgrading the applicant's discharge.

5.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for this Board to reverse the decision of the ABCMR in Document Number AR1999026395 on 9 November 1999.  Further, the applicant's submissions and new arguments are not sufficient as a basis for this Board to upgrade the applicant's discharge.

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

JNS_____  TL______  EJA____  DENY APPLICATION

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

INDEX

CASE ID	AR2002069502	
SUFFIX		
RECON	19991109	
DATE BOARDED	20020625	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19750218	
DISCHARGE AUTHORITY	AR635-200,chapter 10	
DISCHARGE REASON	For the Good of the Service- in Lieu of Trial by Court-Martial	
BOARD DECISION	DENY	
REVIEW AUTHORITY	Mr. Chun	
ISSUES         1.	144.0000	
2.		
3.		
4.		
5.		
6.