MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE:      12 September 2002
         DOCKET NUMBER: AR2002072632

         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
Mrs. Judy Blanchard-Miller .		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Mr. Donald P. Hupman, Jr.		Member
Mr. William D. Powers		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 his discharge under other than honorable conditions (UOTHC) be upgraded to a general discharge under honorable conditions.

APPLICANT STATES: In effect, that he was found in the bathroom with another soldier and there was a spoon with heroin residue on it in the bathroom. He states, that the spoon was not his and no drugs was found on him. Following his arrest the applicant asked for a retraining brigade, but his request was not granted. He states, that he was offered the option of 5 years in prison or sign a chapter 10 discharge. He chose the chapter 10 discharge; however, he feels that he should have been given the option to somehow make amends, or some type of rehabilitation, rather than having an unfavorable discharge on his record. He states, that the discharge has prevented him from receiving veteran’s benefits and has lead to discrimination when seeking employment with the Metropolitan Transit Authority and the New York City Department of Sanitation, even though he passed all the test required for his employment. The incidents caused him to be hospitalized three times for nervous/emotional disorders related to the stress experienced from having a chapter 10 discharge on his record. He confessed in having a heroin addiction, upon his discharge. He is currently clean, and maintaining his sobriety with counseling and support groups at the Housing Works, Inc. The applicant submitted in support of his application two letters.

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

The applicant enlisted in the Regular Army on 27 February 1979 with a moral waiver for 3 years. He completed the required training and was awarded military occupational specialty 11C10 (Indirect Fire Infantryman). The highest grade he achieved was pay grade E-2.

On 23 November 1979, the applicant and another soldier were observed entering a toilet stall in the Frankfurt, Germany, main railroad station. The German Police was summoned and when ordered to open the stall door, the applicant and the other soldier refused. The police looked over the stall door and observed both men flush filled syringes down the toilet. A subsequent search by the German police revealed that the applicant had in his possession drug paraphernalia, including a metal spoon that contained heroin residue. The other soldier had in his possession .09 grams of heroin.

On 28 January 1980, court-martial charges were preferred against the applicant for the possession of heroin.

On 4 February 1980, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200, chapter 10, 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 was afforded the opportunity to submit statements in his behalf, but declined to do so. There is no evidence in his record that shows that he requested a transfer to a retraining brigade.

The applicant’s record indicates, that he was medically cleared by his battalion aid station; however, the medical examination is missing from his file.

On 5 February 1980, the company commander approved the applicant’s request for discharge.

On 11 February 1980, the appropriate authority approved the request for discharge and directed the issuance of an Under Other Than Honorable Discharge Certificate. On 28 February 1980, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of service with a discharge UOTHC. He had completed 1 year and
4 days of creditable active service.

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 is authorized, a discharge under other than honorable conditions is normally considered appropriate.

On 14 August 1981, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

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'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.

3. The applicant alleges that following his arrest; he requested that he be transferred to a retraining brigade. There is no evidence in his record nor has the applicant provided any evidence to support his allegation.

4. The applicant stated, that he was not given the option to make amends, or given the choice of some type of rehabilitation. The applicant made a choice, he chose to request an administrative discharge rather than risk the consequences of a court-martial. He was advised of the effects of a discharge under other than honorable conditions and he was afforded the opportunity to submit statements in his own behalf, but he declined to do so. Although he may now feel that he made the wrong choice, he should not be allowed to change his mind at this late date. The applicant abused illegal drugs; he knowingly risked his military career and diminished the quality of his service below that meriting a general discharge.

5. The discharge process was in accordance with applicable law and regulations and in view of the severity of the charge; it does not appear that his discharge UOTHC was too severe.

6. Therefore the type of discharge directed and the reasons were appropriate considering all the facts of the case.

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

__JNS__ __DPH___ __WDP__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002072632
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/09/12
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	1980/02/28
DISCHARGE AUTHORITY	AR635-200, chp10 . . . . .
DISCHARGE REASON	A70.00
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.144.7000
2.
3.
4.
5.
6.