MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           4 February 1999                   
	DOCKET NUMBER:   AR1999015463

	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. Loren G. Harrell		Director	
	Mr. Robert J. McGowan		Analyst	

  The following members, a quorum, were present:

	Ms. JoAnn H. Langston 		Chairperson	
	Mr. Arthur A. Omartian 		Member	
	Mr. Van B. Cunningham 		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 under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge (HD).

APPLICANT STATES:  That his 12 September 1980 court-martial was rescinded and all charges were dropped; and that he was set up on charges of possession of illegal drugs and forced to take a UOTHC discharge, but after he got out all charges were dismissed for lack of evidence.

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

He enlisted in the Regular Army for 3 years on 30 May 1979.  Following training as a military policeman, he was sent to Fort Polk, Louisiana.  While at Fort Polk, he was convicted by a summary court-martial on 22 August 1980 of stealing gasoline from a military jeep.  He was reduced from private (E2) to private (E1), made to forfeit 1/2 pay for 1 month, and given hard labor without confinement for 1 month.  Following his conviction, the applicant was reassigned to the US Army Retraining Brigade (USARB), Fort Riley, Kansas.  On 12 September 1980, the court-martial convening authority approved the finding of guilty, but set aside the applicant’s punishment in excess of reduction to private (E1).

Following the court-martial convening authority’s action, the applicant was transferred from the USARB to Fort Dix, New Jersey, and retrained as a vehicle driver.  He was then transferred to Fort Campbell, Kentucky.  At Fort Campbell, he received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for failing to go to remedial physical training formation and disobeying the lawful order of an NCO.  Also at Fort Campbell, the applicant was found in possession of marijuana and drug paraphernalia.  Court-martial charges were preferred against him and, after consulting with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Chapter 10, AR 635-200.  His request was approved and, on 8 February 1982, he was separated with a UOTHC discharge under the provisions of Chapter 10, AR 635-200.  He had 2 years, 8 months, and 9 days of creditable service.

On 12 January 1984, the applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade.  He made essentially the same arguments as he made to this Board.  The ADRB denied his request, citing the fact that his court-martial conviction was not set aside, and there was no evidence that any of the drug charges for which he was separated under Chapter 10 were dismissed.

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.

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 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.

2.  The applicant has twice misstated his case before discharge review boards by saying that his court-martial conviction was set aside and the charges that led to his Chapter 10 separation were dismissed.  This is completely untrue; the applicant has a Federal conviction for stealing gasoline, and the drug charges that precipitated his UOTHC separation were not withdrawn.

3.  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.  His request for 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.

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

___JHL  _  __AAO__  __VBC __  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999015463	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990204	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	19820208	
DISCHARGE AUTHORITY	AR 635-200/10	
DISCHARGE REASON	A74.00	
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY	Mr. Harrell	
ISSUES         1.	110.0000	
2.		
3.		
4.		
5.		
6.