MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            24 March 1999 
	DOCKET NUMBER:   AR1999015596

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. James E. Vick		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. Allen L. Raub		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 be upgraded to a general discharge.

APPLICANT STATES:  In effect, that his discharge was too harsh and that he should have received a general discharge because the punishment far outweighed his crime.  He goes on to state that he has been drug free since his discharge and that his discharge has affected his whole life since he was separated.

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

The applicant enlisted on 30 April 1980 for a period of 3 years and training as a terminal operations coordinator.  At the time of his enlistment he indicated that he had used marijuana on one occasion at the age of 17, that he was cited for two incidents of riding a dirt bike on the street at age of 15, and one incident of malicious mischief at the age of 17.  He was granted a moral waiver to enlist at the age of 18.

He successfully completed his training and was assigned to Fort Eustis, Virginia, as permanent party on 7 August 1980.

On 19 December 1980 nonjudicial punishment (NJP) was imposed against the applicant for disobeying a lawful order from an NCO.  His punishment consisted of restriction and extra duty for 14 days and a detention of pay for 3 months.

The applicant was cited for speeding on Fort Eustis on 6 February 1981.  His punishment consisted of a written admonition, attendance at remedial drivers training, and suspension of his license for 18 days.

On 25 March 1981 NJP was again imposed against the applicant for possession of marijuana.  His punishment consisted of a reduction to the pay grade of E-1, correctional custody for 7 days, and extra duty for 14 days.

The applicant was cited for failure to pay his just debts on 31 May 1981 and was arrested for assault on 3 November 1981. 

On 11 January 1982 the applicant’s commander notified him that he was initiating action to bar him from reenlistment based on his record of misconduct and disciplinary actions.  The applicant elected not to submit a statement in his own behalf and the appropriate authority approved the bar to reenlistment on 25 January 1982.

On 27 January 1982 NJP was imposed against the applicant for being disrespectful towards an NCO.  His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of pay, and extra duty for 30 days.
Charges were preferred against the applicant on 22 February 1982 for the wrongful possession, sale, and transfer of marijuana (The CID report indicated that the applicant sold marijuana to a CID informant).

On 13 April 1982, 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 and that he had not been subjected to any coercion whatsoever by any person.  He also indicated that he desired no further rehabilitation not did he have the desire to perform further military service.  He further indicated that he understood the implications of a discharge under other than honorable conditions and that he could expect to encounter substantial prejudicial in civilian life because of such a discharge.

The appropriate authority approved his request on 19 April 1982 and directed that he be discharged under other than honorable conditions.

Accordingly, the applicant was discharged under other than honorable conditions on 20 April 1982 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 1 year, 11 months, and 21 days of total active service. 

There is no evidence in the available records to show that the applicant ever applied to the Army Discharge Review Board 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 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.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.
3.  It appears that the applicant 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.  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 seriousness of the charges against him and his otherwise undistinguished record of service. 

4.  The applicant’s contentions have been noted by the Board; however, they appear to be without merit.  He had a history of misconduct and experimentation with drugs prior to entry into the service and was afforded a second chance when he was accepted by the Army.  Instead of taking advantage of a second opportunity, he continued his pattern of misconduct despite the attempts of the chain of command to afford him the opportunity to succeed.  Therefore, the Board finds that his contentions are not sufficiently mitigating to warrant relief when compared to his record of service and the overall facts of his case. 

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

__jev____  ___rwa__  __alr____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999015596	
SUFFIX		
RECON		
DATE BOARDED	1999/03/24	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1984/04/20	
DISCHARGE AUTHORITY	AR 635-200, CH 10 	
DISCHARGE REASON	IN LIEU OF TRIAL BY CM	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  689	A70.00/144.700	
2.  717	A74.00/144.7400	
3.		
4.		
5.		
6.