MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 13 June 2002
         DOCKET NUMBER: AR2002068706

         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. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Ms. Celia L. Adolphi		Chairperson
Ms. Barbara J. Ellis		Member
Mr. Donald P. Hupman		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: The applicant, as the widow of a deceased former service member (FSM), requests that her husband’s discharge under other than honorable conditions be upgraded to honorable.

APPLICANT STATES: In effect, that the FSM’s discharge was not only unfair, but it also had a significant negative impact on his subsequent professional and personal life and contributed to his death. She contends that the FSM was released from the Army because of a one time incident, which was skillfully manufactured and inflated to make the Drug Suppression Team believe that the FSM was a distributor of illicit drugs. She feels responsible because she approached her husband to get some hashish for a friend. She contends that the FSM complied with her request and supplied the hashish to an undercover agent. The applicant contends there were several discrepancies in the investigation and the charges against the FSM were inflated, purposely blown out of proportion, manufactured and conveniently arranged. She contends that following the FSM’s discharge from the Army, it was difficult for him to find a job, he could not receive any veterans benefits, he could not accrue a pension and he could not further his education. She also contends in the end she could no longer cope with his depression and self-destruction and asked for a separation. The FSM became homeless and began drinking and occasionally using drugs. The applicant asks for a discharge upgrade and a contribution to a memorial fund.

In support of her application, she submits the FSM’s Death Certificate; their Marriage License; a copy of the FSM’s DD Form 214 (Certificate of Release or Discharge from Active Duty); a Certificate of Completion of the National Safety Council’s Defensive Driving Course; a Certificate from Big Bend Community College; separation orders, dated 18 February 1986 and 5 March 1986; CID Report of Investigation, dated 12 December 1985; a charge sheet, dated
30 January 1986; a letter, dated 5 April 1986, from the FSM to a Member of Congress; and a letter of explanation, dated 5 December 2001.

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

The FSM enlisted on 10 January 1977. He successfully completed basic combat training, basic airborne training and advanced individual training and was transferred to Italy for duty as a parachute rigger in September 1977.

The FSM served 40 months in Italy and served two tours in Germany from
12 January 1981 to 16 December 1981 and from 21 December 1983 to
20 December 1986.

On 18 October 1978, while in Italy, nonjudicial punishment was imposed against the FSM for possession of marijuana in the hashish form and failing to go to his appointed place of duty. His punishment consisted of a reduction to E-2 (suspended for 120 days), a forfeiture of pay and extra duty.
On 14 December 1978, while in Italy, nonjudicial punishment was imposed against the FSM for being drunk on duty. His punishment consisted of a reduction to E-1, a forfeiture of pay, extra duty and restriction.

On 2 September 1980, while in Italy, nonjudicial punishment was imposed against the FSM for driving while drunk and possession of marijuana in the hashish form. His punishment consisted of a reduction to E-2 (suspended until
3 March 1981), a forfeiture of pay and extra duty.

On 18 December 1985, while in Germany, nonjudicial punishment was imposed against the FSM for driving while drunk. His punishment consisted of a reduction to E-4, a forfeiture of pay and extra duty.

The FSM’s service personnel records contain a DA Form 2823 (Sworn Statement), dated 20 November 1985, wherein he states that he had used hashish approximately 5 times and that on one occasion he “helped out a friend by obtaining a $20.00, piece of hashish from [another soldier] which was given to a dependent female by me I only traded the hashish for $20.00 and did not make a profit, it was just a favor for a friend.” A CID Report of Investigation, dated
12 December 1985, disclosed that the FSM possessed and distributed .75 gram of hashish to a covert member of the Drug Suppression Team for $20.00, U.S. Government funds.

On 30 January 1986, charges were preferred against the FSM for using marijuana in the hashish form on different occasions between February and November 1985 and distributing approximately .75 grams of marijuana in the hashish form on 19 September 1985. Trial by special court-martial was recommended.

After consulting with counsel, the FSM submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10. He indicated in his request that he understood he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Discharge Certificate; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all benefits administered by the VA; and that he may be deprived of his rights and benefits as a veteran under both Federal and State law. He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of an Under Other Than Honorable Discharge. Additionally, he elected not to submit a statement in his own behalf.

On 6 February 1986, the intermediate commanders recommended that the FSM’s request for discharge be approved and that he be discharged under other than honorable conditions. On 12 February 1986, the separation authority approved the FSM’s request for discharge and directed that he be discharged under other than honorable conditions.
Accordingly, the FSM was discharged under other than honorable conditions on 14 March 1986 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of court-martial. He had served 9 years, 2 months and 5 days of total active service.

There is no indication that the FSM applied to the Army Discharge Review Board within its 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 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.

Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. Whenever there is doubt, it is to be resolved in favor of the individual.

Title 10, United States Code, Section 1552 provides that the Secretary of a military department may correct any military record of the Secretary’s department when the Secretary considers it necessary to correct an error or remove an injustice. The law further states that corrections shall be made by the Secretary acting through boards of civilians of the executive part of that military department. This provision of law is the basis for the operations of the Army Board for Correction of Military Records (ABCMR).

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 considered the applicant’s contentions. However, the FSM requested a discharge for the good of the service in order to avoid a trial by court-martial and the possibility of receiving a felony conviction.

2. The FSM’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.

3. The type of discharge directed and the reasons for separations were appropriate considering all the facts of the case.

4. The Board noted that the FSM had served over 9 years of active service at the time of his separation. However, the Board also noted the FSM’s record of service included four nonjudicial punishments for drug and alcohol related incidents. The Board further noted that the FSM was a sergeant charged with use and distribution of marijuana in the form of hashish. The Board determined that the seriousness of the offenses for which court-martial charges had been preferred against the FSM were too serious, to warrant relief in the form of an honorable discharge. Therefore, the applicant is not entitled to an honorable discharge.

5. The Board noted the applicant’s request for a contribution to a memorial fund, in effect, to recognize her husband’s 10 years of service. Regulation governing operation of the ABCMR provides that the Secretary of the Army may correct an error or remove an injustice in military records. The applicant’s request for a contribution to a memorial fund is not related to correction of military records as governed by the law. Therefore, this request does not fall under the purview of the ABCMR and there is no basis for granting the applicant’s request in this case.

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

CLA____ BJE____ DPH_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002068706
SUFFIX
RECON
DATE BOARDED	20020613
TYPE OF DISCHARGE	(UOTHC)
DATE OF DISCHARGE	19860314
DISCHARGE AUTHORITY	AR 635-200 Chapter 10
DISCHARGE REASON	For the good of the service, in lieu of court-martial
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	110.0200
2.
3.
4.
5.
6.