| Mr. Carl W. S. Chun | Director | |
| Mr. William Blakely | Analyst |
| Mr. Raymond V. O’Connor, Jr. | Chairperson | |
| Mr. Eric N. Andersen | Member | |
| Mr. Thomas E. O’Shaughnessy, jr. | Member |
APPLICANT REQUESTS: In effect, that his undesirable discharge (UD) be upgraded to an honorable discharge (HD).
APPLICANT STATES: In effect, that his discharge was too harsh considering other soldiers with similar offenses received honorable type discharges.
COUNSEL CONTENDS: Counsel concurs in the applicant’s presentation and requests that all reasonable doubt be resolved in the applicant’s favor.
EVIDENCE OF RECORD: The applicant's military records show:
On 21 June 1972, he entered the Army for 3 years. He successfully completed training and was assigned overseas to Germany. His record documents no acts of valor, significant achievement, or service warranting special recognition during his active duty tenure.
The record does show that the highest rank the applicant attained while serving on active duty was specialist/E-4. It also reveals an extensive disciplinary history that includes his acceptance of nonjudicial punishment (NJP) on 11 March 1975, for having an unauthorized female visitor in his room.
On 29 March 1975, the applicant was apprehended by the Criminal Investigation Division (CID) for possession of four grams of heroin, which he was in the process of selling to a buyer who was a CID informant.
On 9 April 1975, the applicant was notified that a court-martial charge was being preferred against him for possession of four grams of heroin. After consulting with legal counsel and being advised of the basis for the contemplated trial by court-martial, he voluntarily requested to be discharged for the good of the service/in lieu of trial by court-martial, under the provisions of chapter 10,
Army Regulation 635-200.
On 2 May 1975, the appropriate authority approved the applicant’s separation request and directed that he receive an UD. On 4 May 1975, the applicant was discharged accordingly, after having served a total of 2 years, 10 months, and
24 days of total active service.
On 5 May 1980, the Army Discharge Review Board denied the applicant’s request for an upgrade to his discharge after determining it was proper and equitable.
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 his discharge was too harsh because other soldiers who were separated for similar reasons received honorable type discharges; however, it finds this claim lacks merit. The type of discharge other soldiers received is not relevant to his case and in accordance with the applicable regulations each case is decided on an individual basis considering the unique facts and circumstances of that particular case.
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 record confirms that the applicant was discharged in lieu of trial by
court-martial. Procedurally, this would have required him to consult with legal counsel after being charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge. In addition, he would have had to voluntarily request separation after admitting guilt to the stipulated offense under the UCMJ.
4. 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.
5. 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___ __ENA__ __TEO__ DENY APPLICATION
| CASE ID | AR2001058860 |
| SUFFIX | |
| RECON | YYYYMMDD |
| DATE BOARDED | 2001/09/27 |
| TYPE OF DISCHARGE | (UOTHC) |
| DATE OF DISCHARGE | 19750514 |
| DISCHARGE AUTHORITY | AR635-200 |
| DISCHARGE REASON | For the good of the service/in lieu of trial by CM |
| BOARD DECISION | (DENY) |
| REVIEW AUTHORITY | |
| ISSUES 1. | 71.00 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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