MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            19 September 2002
	DOCKET NUMBER:   AR2002072697

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Ms. JoAnn H. Langston		Chairperson	
	Ms. Melinda M. Darby		Member	
	Mr. Ronald E. Blakely		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 discharge under other than honorable conditions be upgraded to honorable. 

APPLICANT STATES:  In effect, that he desires his discharge be upgraded so that he can receive benefits to help his family and himself with housing.

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

He enlisted in Long Island, New York, on 24 June 1977, for a period of 3 years and training as a radio operator.  At the time of his enlistment, he indicated that he was married with two dependents and that he had used marijuana once in December 1976.  He completed his training and was transferred to Fort Campbell, Kentucky.  

On 10 March 1978, nonjudicial punishment was imposed against him for two separate specifications of pawning his military equipment (sleeping bags and field jackets).  His punishment consisted of extra duty for 7 days.

He was advanced to the pay grade of E-3 on 24 June 1978 and was honorably discharged on 26 November 1978, for the purpose of immediate reenlistment.  He reenlisted on 27 November 1978 for a period of 3 years.  He indicated at that time that he was married and had three dependents (wife and two children).

He was transferred to Germany on 15 January 1979 and was advanced to the pay grade of E-4 on 1 June 1979.  On 14 June 1979, he extended his enlistment for a period of 2 months, in order to complete a normal overseas tour for command sponsorship.

On 12 May 1980, charges were preferred against the applicant for two specifications of the wrongful possession of marijuana (in hashish form) and heroin, two specifications of the wrongful sale of marijuana and heroin, and two specifications of the wrongful transfer of marijuana and heroin.

On 3 July 1980, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  In his request, he indicated that he was making the request of his own free will, without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted that he was guilty of the charges against him or of lesser-included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He further elected to submit a statement in his own behalf whereas he asserted that he did not want to get out of the Army, but he never wanted to be separated from his family again, especially to spend time in prison for what he had done.  Therefore, if staying with his family meant getting out of the Army, that’s how he wanted it.
The applicant’s company and battalion commander recommended disapproval of his request and indicated that the seriousness of the charges warranted trial by court-martial.  However, the brigade commander recommended approval of his request.

The appropriate authority (a major general) approved his request on 15 July 1980 and directed that he be discharged under other than honorable conditions.

Accordingly, he was discharged under other than honorable conditions on 12 August 1980, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 1 year, 8 months, and 16 days of total active service.

There is no indication in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against them or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and they must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive.  A discharge under other than honorable conditions is normally considered appropriate and there has never been any provisions for an automatic upgrade of such a 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 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.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records.  In doing so he admitted guilt to the charges against him.  While he may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date, especially considering the number and length of his absences as well as his otherwise undistinguished record of service during such a short period of time. 

4.  The Board has noted the applicant’s contentions.  However, given the seriousness of the charges against him, for which he admitted guilt, the Board finds that his overall record of service is not sufficiently mitigating to warrant relief.

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

___md___  ___jhl___  ___reb___  DENY APPLICATION

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

INDEX

CASE ID	AR2002072697	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/09/19	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1980/08/12	
DISCHARGE AUTHORITY	AR635-200/CH10	
DISCHARGE REASON	GD OF SVC	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  689	144.7000/A70.00	
2.		
3.		
4.		
5.		
6.