MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           25 February 2003
	DOCKET NUMBER:   AR2002080373

	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. William Blakely		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Ronald E. Blakely		Member	
	Mr. Lawrence Foster		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 undesirable discharge (UD) be upgraded.   

APPLICANT STATES:  In effect, that he was set up on a charge of selling drugs. He states that the trial process was lengthy, and after a long period of waiting, he finally requested separation under the provisions of chapter 10, Army Regulation 635-200, for the good of the service, in lieu of trial by court-martial.

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

On 11 September 1969, the applicant entered the Army for a period of 3 years.  He was awarded military occupational specialty (MOS) 36K (Field Wireman) and the highest rank he held while serving on active duty was sergeant/E-5.  The record further shows that during his active duty tenure, he earned the following awards:  National Defense Service Medal; Vietnam Service Medal; and Republic of Vietnam Campaign Medal with 60 Device.  

While assigned to Vietnam, on 3 June 1971, court-martial charges were preferred against the applicant for unlawfully possessing 7 pills and 7 capsules of heroin, wrongfully using marihuana, and wrongfully selling heroin.  The applicant consulted with legal counsel, and after being advised of the basis for the contemplated trial by court-martial, its effects, and the possible effects of receiving an UD, he voluntarily requested an administrative discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service, in lieu of trial by court-martial.  

On 20 August 1971, the appropriate authority approved the applicant’s request for discharge and directed that the applicant receive an UD and be reduced to the lowest enlisted grade.  On 9 September 1971, the applicant was discharged accordingly.  At the time of his discharge, he had completed a total of 1 year, 
11 months, and 29 days of creditable active military service.  

On 13 January 1982, the Army Discharge Review Board determined that the applicant’s discharge had been proper and equitable, and it voted to deny the applicant’s request for an upgrade to his discharge. 

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 UD.

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 Board notes the applicant’s contention that he was set up on the charge of selling drugs.  However, the Board finds insufficient evidence to support this claim.  

2.  The Board finds that the applicant, by violating the Army’s drug policy not to possess or use illegal drugs, compromised the special trust and confidence placed in him as a soldier.  By possessing illegal drugs the applicant knowingly risked his military career and this misconduct clearly diminished the quality of his service below that warranting a discharge under honorable conditions.  Therefore, the Board concludes the type of discharge directed was appropriate and accurately reflects the overall character of his service.

3.  The evidence of record confirms that the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  The Board notes that, after consulting with defense counsel, the applicant voluntarily, and in writing, requested separation from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt to the stipulated offenses under the UCMJ.  

4.  The Board was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  It also notes that the characterization of service for this type of discharge is normally an UD and that the applicant was aware of that prior to requesting discharge.  

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

__RJW__  __WDP _  __LMB___  DENY APPLICATION

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

INDEX

CASE ID	AR2002080373	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2003/02/25	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19710909	
DISCHARGE AUTHORITY	AR635-200 .  .  .  .  .  	
DISCHARGE REASON	In Lieu of Trail by CM	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.7400	
2.		
3.		
4.		
5.		
6.