MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           10 May 2000
	DOCKET NUMBER:   AR1999030777

	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. David H. Keller		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson 		Chairperson	
	Mr. George D. Paxson		Member	
	Mr. Thomas B. Redfern III		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 general discharge be upgraded to honorable.

APPLICANT STATES:  That he was never informed that counsel could advise and represent him in any hearings or prior to acceptance of any disciplinary action.  He was never offered any substance abuse treatment or notified of a rescheduling in his hearing prior to receiving a discharge.

COUNSEL CONTENDS:  Counsel offered no evidence or argument beyond that submitted with the application.

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

He entered active duty on 8 April 1974 and, after training, was assigned to Germany.

On 8 July 1974, the applicant was administered nonjudicial punishment (NJP) under Article 15, UCMJ, for failure to report to his appointed place of duty.  His punishment included reduction in pay grade to private (E-1).

On 26 December 1974, he was administered NJP for two specifications of sleeping on guard duty.  His punishment included reduction in rank from private first class (E-3) to private (E-2).

On 2 February 1975, the applicant was formally charged with wrongfully attempting to sell heroin, and wrongful possession of heroin.  On 7 March 1975, he consulted with counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He stated that he acknowledged he was guilty of the charge against him which authorized the imposition of a bad conduct or dishonorable discharge, and that he did not desire further rehabilitation, nor had any desire for further military service.  He stated that he understood the nature and consequences of the undesirable discharge that he might receive.  He declined to submit a statement in his own behalf.

On 24 March 1975, the separation authority, a major general, approved the request and directed the applicant be issued an Undesirable Discharge Certificate.

The applicant was discharged on 31 March 1975 at Fort Jackson, South Carolina.  He had 11 months and 24 days of creditable active service.

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.  However, at the time of the applicant’s separation the regulation provided for the issuance of an undesirable discharge.

On 2 June 1989, the Army Discharge Review Board, in a unanimous decision, denied the applicant’s request for upgrade of his discharge.  The board had previously denied a similar request from the applicant on 21 November 1978.

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.  Although the applicant requests that his general discharge be upgraded to honorable, the record shows that he was discharged under other than honorable conditions with an Undesirable Discharge Certificate.  There is no information of record that his undesirable discharge was ever upgraded.

4.  The Board rejects the applicant’s contention that he was never informed of his options for counsel.  His request for discharge on 7 March 1975, which he authenticated with his signature, states that he was afforded the opportunity to consult with legal counsel and did so.

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 the aforementioned 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

__mkp___  __gdp___  __tbr____  DENY APPLICATION

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

INDEX

CASE ID	AR1999030777	
SUFFIX		
RECON		
DATE BOARDED	20000510	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19750331	
DISCHARGE AUTHORITY	AR635-200 CH 10	
DISCHARGE REASON	A74.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.	142.00	
3.	A90.07	
4.		
5.		
6.