MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           24 October 2002
	DOCKET NUMBER:   AR2002076830

	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. Raymond V. O’Connor, Jr. | | Chairperson
| Ms. Barbara J. Ellis | | Member
| Ms. Karen A. Heinz | | 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 is currently very ill and is in need of medical help.  He claims that in 1969, he and a friend, who was a truck driver, were riding around and purchased a bag of marijuana.  He states that he does not recall who purchased the marijuana, but he believes it was his friend.  He indicates that the vehicle they were riding around in was stopped by the Military Police (MP), and he was observed removing the marijuana from his friend’s pocket and throwing it on the ground.  As a result, he was charged with possession of marijuana.  He claims that he was told by his first sergeant that because his pay grade was E-5 he could resign.  All this time since his discharge, he always believed that he had resigned and he did not know the type of discharge he had received. 

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

The applicant entered the Army on 2 October 1967.  Upon completion of his training, he was awarded military occupational specialty (MOS) 67N (Helicopter Repairer).  His record shows that the highest rank he attained while serving on active duty was specialist five/E-5 (SP5/E-5).  It also 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.

On 26 June 1969, while the applicant was serving in the Republic of Vietnam (RVN), a court-martial charge was preferred against him for the possession of marijuana.  The applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the impact of an UD, and of his rights in connection with the matter.  

Subsequent to receiving legal counseling, the applicant voluntarily requested, in writing, that he be discharged under the provisions of chapter 10, 
Army Regulation 635-200, for the good of the service in lieu of trial by 
court-martial.  In his request, he confirmed that he had not been coerced into requesting the discharge, and that he fully understood the implications that were attached to an UD.  This included his being deprived of many or all Army benefits, his ineligibility for many or all benefits administered by the Department of Veterans Affairs (VA), and the fact that he could be deprived of his rights and benefits as a veteran under State and Federal law.  

On 28 June 1969, the appropriate separation authority approved the applicant’s discharge request and directed that he receive an UD, and that he be reduced to the lowest enlisted rank and pay grade.  
On 7 July 1969, the applicant was separated from active duty with an UD under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial.  At the time of his discharge, he had completed a total of 1 year, 8 months, and 27 days of creditable active military service.

There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statue of limitations.

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.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and it is concluded:

1.  The Board notes the applicant’s request for an upgrade to his discharge because he is critically ill, needs medical assistance, and is unable to afford outside medical insurance.  However, it finds no evidence to support these claims.  Further, the Board concludes that even if these factors were true, they are still not sufficiently mitigating to warrant the requested relief. 

2.  The evidence of record shows 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.  

3.  Further, the Board finds that an UD was normally considered appropriate for members separating under the provisions of chapter 10, Army Regulation 
635-200, and it further concludes that the applicant was fully aware of that prior to requesting discharge.  Thus, the Board concludes that there is an insufficient evidence to support the applicant’s allegation that he was unaware of the type of discharge he was receiving or of its ultimate impact on his entitlement to veterans benefits. 

4.  Lacking independent evidence to the contrary, the Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the Board finds that the type of discharge directed and the reasons therefore were appropriate considering all the facts of the case and the applicant’s overall record of service.

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

__RVO__  __BJE__  __KAH__  DENY APPLICATION

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

INDEX

CASE ID | AR2002076830
SUFFIX |
RECON | YYYYMMDD
DATE BOARDED | 2002/10/24
TYPE OF DISCHARGE | UOTHC
DATE OF DISCHARGE | 19690707
DISCHARGE AUTHORITY | AR625-200 .  .  .  .  .
DISCHARGE REASON | In Lieu Trial by CM
BOARD DECISION | DENY
REVIEW AUTHORITY |
ISSUES         1. | 144.7400
2. |
3. |
4. |
5. |
6. |