MEMORANDUM OF CONSIDERATION
IN THE CASE OF:
BOARD DATE: 19 November 1998
DOCKET NUMBER: AC97-07443
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.
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 (UOTHC) be upgraded.
APPLICANT STATES: Up to the point of his discharge, his record was very good. He does not believe the choices they gave him for (possessing) two ounces of pot was fair at all.
EVIDENCE OF RECORD: The applicants military records show:
He enlisted in the Regular Army on 21 March 1973. He completed basic training and advanced individual training and was awarded military occupational specialty 92B (Medical Laboratory Specialist).
On 11 December 1974, the applicant accepted non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for failing to go to his appointed place of duty.
On 23 June 1975, the applicant was promoted to Specialist E-5.
On 1 October 1975, the applicant accepted NJP under Article 15, UCMJ for wrongfully possessing marijuana.
On 24 September 1976, the applicant accepted NJP under Article 15, UCMJ for being disrespectful in language and deportment towards his superior non-commissioned officer and for wrongfully communicating a threat to injure.
On 26 November 1976, the applicant accepted NJP under Article 15, UCMJ for being disrespectful in language and deportment towards his superior non-commissioned officer. His punishment was to be reduced to pay grade E-4. He did not appeal the Article 15 and there is no evidence that the punishment was suspended. However, there is no evidence the punishment was ever carried out.
The applicants enlisted evaluation report (EER) for the period February through November 1976 has numerous ratings of needs improvement, his potential was evaluated as do not promote, and there were numerous negative comments on it.
On 18 October 1976, court-martial charges were preferred against the applicant charging him with two specifications of wrongfully possessing 27.61 grams of marijuana and two specifications of wrongfully distributing 24.25 grams of marijuana.
On 24 November 1976, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Chapter 10, Army Regulation 635-200 for the good of the service in lieu of trial by court-martial. The applicant was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and Veterans Administration benefits. He submitted a statement in his own behalf, wherein he stated:
The marijuana charges against me have caused a change in my personal outlook on the Army. Pressure from home has caused me to do things here such as sell marijuana which
On 2 December 1976, the applicant completed a separation physical and was found qualified for separation.
The applicant departed absent without leave (AWOL) from 30 December 1976 to 4 January 1977.
On 3 January 1977, the appropriate authority approved the request and directed the applicant receive an undesirable discharge.
On 11 January 1977, the applicant was discharged, with a discharge UOTHC, in pay grade E-1 for the good of the service. He had completed 3 years, 9 months and 16 days of creditable active service and had 6 days of lost time.
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.
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'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. The character of service is appropriate considering the seriousness of the offenses charged and his prior record of misconduct.
3. 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
FNE TAP BJE DENY APPLICATION
Loren G. Harrell
Director
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