MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 18 October 2001
         DOCKET NUMBER: AR2001058194

         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
Ms. Rosa M. Chandler		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Melvin H. Meyer		Member
Ms. Barbara J. Ellis		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 a general discharge (GD) under honorable conditions or an honorable discharge (HD).

APPLICANT STATES: In effect, that he believes his post-service conduct warrants an upgrade of his discharge. He adds that his UOTHC discharge has created a stigma that has denied him opportunities for more than 21 years. He states that he was a juvenile delinquent prior to dropping out of high school and joining the military. His juvenile probation officer suggested that he join the military. He achieved the rank of private first class, pay grade E-3, and he fully intended to fulfill his service obligation. However, he was arrested in Germany after a fellow soldier snorted some heroin and handed the bag to him. He was charged with possession of heroin, received a UOTHC discharge, and his life went downhill after that. He lived on the streets of Washington, DC and he was arrested on several occasions for DWI and for petty misdemeanors. On 6 July 1992, he entered an Alcoholics Anonymous Group and he has been alcohol and drug free since that time. He has drastically changed his life and he has become a healthy, productive member of society. He has earned his driver's license, he has attended college and he has cleaned up his finances. Even though the company that he previously worked for has filed for bankruptcy and he is currently unemployed, he has interviewed for several jobs in both the public and private sector.

In support of his application, he submits a personal statement; a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty); an order by the Circuit Court of Fairfax County, Virginia, dated 18 December 1992, reinstating
a restricted operator's license; a 31 May 1995 petition from the Fairfax County Alcohol Safety Action Program to the 19^th Judicial Circuit Court (Fairfax, Virginia) to reinstate full driving privileges; a Transcript of Driver History Record, from Richmond, Virginia, dated 12 April 1995; a Police Record Check from the City
of Fairfax County that shows he has no recorded criminal offenses between
1 January 1988 and 12 April 1995; a negative drug screening test, dated 5 May 1995; Internal Revenue Services documents for the year 2000 that indicating he has settled his back taxes; and a school transcript from Northern Virginia Community College, dated 8 May 2001.

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

That on 6 September 1978, both his father and his mother signed a declaration of parental consent for him to enlist in the military. On the same date, at age 17, he enlisted in the Regular Army for a period of 3 years. He completed basic combat training and advanced individual training and was awarded military occupational specialty (MOS) 12B (Combat Engineer). On 2 January 1979, he was assigned to Germany.

On 5 September 1979, the applicant was charged with wrongful possession of a habit-forming narcotic drug (heroin) on 3 July 1979. On 9 October 1979, he consulted with legal counsel and requested discharge for the good of the service in lieu of trial by court-martial, under the provisions of chapter 10, Army Regulation 635-200. He was advised that separation under chapter 10 could lead to a UOTHC discharge. He authenticated a statement in which he acknowledged that he understood the ramifications of receiving a UOTHC discharge. The available records do not contain a statement submitted by the applicant in his own behalf.

On 11 October 1979, the applicant’s unit commander recommended that his request for discharge be approved. The applicant's commander stated that the applicant admitted purchasing heroin and he admitted that he understood that he had made a serious mistake. The applicant also stated that it was the first time that he had purchased heroin and the applicant's commander stated that he believed him. The applicant's commander also stated that the applicant's performance of duty had been adequate and he had not been a disciplinary problem over the past few months; however, he was not a quality soldier and he showed no desire to remain in the service or to contribute to the unit in a positive manner. His friends were known drug users who were awaiting various administrative discharge actions.

On 15 October 1979, the applicant's intermediate commander recommended that his request for discharge be approved with a UOTHC discharge. On
26 October 1979, the separation authority approved separation with a UOTHC discharge and directed that the applicant be reduced from pay grade E-3 to pay grade E-1. On 5 November 1979, the applicant was separated with a UOTHC discharge for conduct triable by court-martial, under the provisions of chapter 10, Army Regulation 635-200. He had completed 1 year and 2 months of active military service and he had no recorded lost time.

There is no evidence in the available records to indicate that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge 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 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 was authorized, a UOTHC discharge 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 this requirement.

2. The applicant voluntarily requested discharge to avoid trial by court-martial and there is no evidence of any coercion during the discharge process. He has provided no information that would indicate the contrary.

3. The Board has taken into consideration the applicant’s contention that he was young at the time that he enlisted. However, he met entrance qualification standards, to include age with a waiver. The Board found no evidence that he was any less mature than other soldiers who successfully completed their military service obligation.

4. The Board considered the applicant’s entire record of service and was convinced that the reason for discharge and the characterization of service were both correct.

5. The applicant’s post service achievements are commendable, but do not overcome the seriousness of the offense for which he was discharged.

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

_FNE ___ ___MHM __BJE___ DENY APPLICATION

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

                                                     
INDEX

CASE ID	AR2001058194
SUFFIX
RECON
DATE BOARDED	20011018
TYPE OF DISCHARGE	(UOTHC)
DATE OF DISCHARGE	19791105
DISCHARGE AUTHORITY	AR635-200, CHAPTER 10
DISCHARGE REASON	A70.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	144.7000
2.
3.
4.
5.
6.