MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           19 September 2002                  
	DOCKET NUMBER:   AR2002073444

	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. Stephanie Thompkins		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:  That his discharge under other than honorable conditions (UOTHC) be upgraded.

APPLICANT STATES:  That he was put out of the service based on hearsay and no proof.  He also states that if someone is supposed to be working undercover for the police and not show up for court after stating they purchased marijuana from him, there is something wrong with that picture.  The Army put him out because a Korean woman said he sold her some marijuana and she could have purchased the marijuana from anyone.

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

He enlisted in the Regular Army, in pay grade E-2, on 22 January 1982.

He was advanced to private first class on 1 October 1982.

On 14 February 1983, he was punished under Article 15, Uniform Code of Military Justice, for violation of lawful general regulation, during the period of June through September 1982, to wit: by transferring duty-free goods to a person not authorized duty-free goods.  His punishment included reduction to pay grade E-1, forfeiture of pay for 2 months, restriction for 30 days and extra duty for 30 days.

A Criminal Investigation Division Report of Investigation dated 8 April 1983 states that the applicant wrongfully possessed and distributed 12.67 grams of marijuana to a confidential informant on 9 February 1983.

On 24 June 1983, his commander recommended that the applicant be discharged from the service under the provisions of Chapter 14, Army Regulation 635-200, for commission of a serious offense.  The commander stated that this action was based on the applicant's apprehension for being in possession with intent to distribute and distribution of a controlled substance, to wit: marijuana.

On 27 June 1983, the applicant acknowledged through counsel the proposed separation.  He requested consideration of his case with his personal appearance by a board of officers.  He elected not to submit a statement in his own behalf.

On 25 July 1983, a board of officers convened to determined whether the applicant should be discharged before his expiration of term of service because of wrongful possession with intent to distribute and distribution of a controlled substance, to wit: marijuana.  The board found the applicant undesirable for further retention in the service due to the commission of a serious offense and recommended that the applicant be discharge from the service with the issuance of a UOTHC discharge certificate.
On 17 August 1983, the appropriate authority considered the record in the applicant's case and approved the request for discharge.  It was directed that the applicant be reduced to the lowest enlisted grade and issued a UOTHC discharge certificate.

He was discharged on 2 September 1983, under the provisions of Army Regulation 635-200, Chapter 14, Misconduct-Commission of a Serious Offense and issued a UOTHC discharge certificate.  He was credited with 1 year, 7 months and 11 days of total net active service.

There is no evidence of record that he 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 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

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.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge.  He has not shown error, injustice, or inequity for the relief he now requests.  

2.  The Board has noted his contentions; however, the applicant elected and appeared before a board of officers based on the distribution of a controlled substance.  It was determined that he should be discharged because of wrongful possession with intent to distribute and distribution of a controlled substance.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

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

_MMD___  _JHL___  _REB____  DENY APPLICATION

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

INDEX

CASE ID	AR2002073444	
SUFFIX		
RECON		
DATE BOARDED	20020919	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	A70	
2.		
3.		
4.		
5.		
6.