MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 24 January 2002
         DOCKET NUMBER: AR2001062432

         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. George D. Paxson		Chairperson
Mr. Walter T. Morrison		Member
Mr. Richard T. Dunbar		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)

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APPLICANT REQUESTS: In effect, that her general, under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD); that the narrative reason for her separation be changed; that her reentry (RE) code of RE-3 be changed to RE-1; and that she be assigned a more favorable separation program designator (SPD) code.

APPLICANT STATES: In effect, that relief should be granted based on her good character. In support of her application, she submits three letters of support attesting to her good character.

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 10 August 1973, the applicant entered the Army for 3 years. She successfully completed training and was awarded the military occupational specialty (MOS) 72C (Central Office Switchboard Operator).

The applicant’s record shows that the highest rank she attained while serving on active duty was specialist/E-4 (SP4) and that during her active duty tenure she earned the Armed Forces Expeditionary Medal and the National Defense Service Medal. In addition, her service record includes a disciplinary history that includes her acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on two separate occasions.

On 6 December 1973, the applicant accepted NJP for two specifications for failure to go to her appointed place of duty and on 20 April 1976, she again accepted NJP for possession of marijuana.

On 16 June 1976, a court-martial charge was preferred against the applicant of wrongfully possessing 181.73 grams of marijuana. On 22 June 1976, after consulting legal counsel and being advised of the basis for the contemplated trial by court-martial and the maximum allowable punishment; the applicant voluntarily 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.

On 22 July 1976, the appropriate authority approved the applicant’s discharge request and directed she be issued a GD. On 24 August 1976, the applicant was discharged accordingly after having completed a total of 3 years and 15 days of creditable active military service. In addition, based on the authority and reason for her discharge, the applicant was assigned an RE-3 code and a SPD code of “KFS.”

On 8 June 1982, the Army Discharge Review Board determined that the character and reason for the applicant’s discharge were both proper and equitable, and it voted to deny her request for an upgrade to her 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 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 court-martial charges have been preferred. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating soldiers from active duty, and the SPD codes to be entered on the separation document (DD Form 214). The SPD code of KFS was the appropriate code for the applicant based on this regulatory guidance for soldiers separating under the provisions of chapter 10, Army Regulation 635-200, for the good of the service/in lieu of trial by court-martial. Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), Army Regulation 635-5 (Separation Documents), establishes RE-3 as the proper reentry code to assign to soldiers separated for this reason. RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.

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 her discharge should be upgraded based on her good character and while the Board does not question her character, this reason alone is not sufficiently mitigating to warrant the requested relief.

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 her as a soldier. By possessing illegal drugs, the applicant knowingly risked her military career and this misconduct clearly diminished the quality of her service below that warranting a fully honorable discharge. Therefore, the Board concludes the type of discharge directed and the narrative reason for discharge were both proper and equitable.

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3. The evidence of record shows that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting counsel and being advised of the basis for the contemplated trial by court-martial and the maximum allowable punishment, she voluntarily requested separation in lieu of trial by court-martial. In doing so, she admitted guilt to the stipulated offense under the UCMJ.

4. 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. It also notes that the characterization of service for this type of discharge is normally under other than honorable conditions and that the applicant was issued a more favorable GD based on her overall record of service.

5. The applicant has failed to show, through the evidence she submitted with her application or the evidence of record, that the RE-3 code she was issued was incorrect. In view of the circumstances in this case, the Board finds the assigned RE code and SPD code were appropriate based on the authority and reason for her discharge and the basis for their assignment has not changed. Thus, the Board concludes that both codes are still appropriate and there is no basis for changing either at this time.

6. 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.

7. 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

__GDP__ _ _WTM__ __RTD DENY APPLICATION

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

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INDEX

CASE ID	AR2001062432
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/01/24
TYPE OF DISCHARGE	(GD)
DATE OF DISCHARGE	19760810
DISCHARGE AUTHORITY	AR635-200, Chapter 10. . . . .
DISCHARGE REASON	In lieu of trial by CM
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	71.00
2.	110.00
3.
4.
5.
6.