MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 24 September 2002
         DOCKET NUMBER: AR2002074311

         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. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Kenneth W. Lapin		Member
Mr. Donald P. Hupman, Jr.		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: That his discharge under other than honorable conditions (UOTHC) be upgraded to honorable.

APPLICANT STATES: That he would like to be present at a hearing so the Board can receive the full picture of his case. He believes his discharge was the result of peer pressure and, more importantly, by his drug addiction. He will suffer from addiction for the rest of his life. He also suffers from depression which doctors agree he had most of his life. He was young and immature. He was close to finishing his last tour. He was generally a good service member. He had no problems until his last duty station.

As supporting evidence, the applicant provides a 28 January 2002 Baltimore County, Department of Health, Bureau of Substance Abuse substance abuse evaluation. The evaluation noted in part that the applicant reported his first illicit drug use occurred at age 16 when he smoked marijuana. He soon thereafter began smoking the drug approximately twice per month. He stopped one or two months before he planned to enter the Army. After entering the Army, the applicant stated he resumed marijuana use, smoking the drug twice per month. At age 18, he began ingesting amphetamines once per weekend and continued to use various types of amphetamines on a weekly basis. He stopped using amphetamines after he entered the Army. He first used cocaine at age 23 when he was introduced to the drug by a friend in the Army. He initially inhaled one or two lines of cocaine every other month but within one year his cocaine use exploded and he began injecting one-quarter of a gram about twice per month.

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

He was born on 16 September 1961. He enlisted in the Regular Army on 15 October 1980. (On his Record of Military Processing - Armed Forces of the United States, DD Form 1966/6, he indicated that he had experimented with marijuana.) He completed basic training and advanced individual training and was awarded military occupational specialty 54E (Nuclear, Biological and Chemical Specialist). He was honorably discharged on 14 April 1983 for the purpose of immediately reenlisting on 15 April 1983 for 6 years.

On 24 February 1986, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for failing to go to his appointed place of duty. His punishment was a reduction to pay grade E-3, suspended for 3 months, and 7 days extra duty. On 23 May 1986, the suspension was vacated as a result of the applicant wrongfully using marijuana.

On 2 July 1986, the applicant accepted NJP under Article 15, UCMJ for failing to go to his appointed place of duty.

On 15 August 1986, the applicant accepted NJP under Article 15, UCMJ for failing to go to his appointed place of duty and for absenting himself from his unit without authority.

On 22 August 1986, court-martial charges were preferred against the applicant charging him with unlawfully entering a Government building with the intent to commit larceny, destruction of Government property by breaking two window panes, larceny of Government property of a value of about $300.00, and breaking restriction.

On 17 October 1986, 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 UOTHC and that he might be deprived of many or all Army and Veterans Administration benefits. He apparently did not submit a statement in his own behalf.

On 20 October 1986, the appropriate authority approved the request and directed the applicant receive a discharge UOTHC.

On 22 October 1986, the applicant was discharged with a discharge UOTHC, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, discharge in lieu of trial by court-martial. He had completed 6 years and 7 days of creditable active service and had 1 day of lost time.

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. A discharge UOTHC 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’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. It is noted that the applicant was 19 years old when he enlisted. (It is also noted that it appears he lied on his enlistment documents when he indicated he only "experimented" with marijuana. The evidence he provides shows he was a regular marijuana and amphetamine user prior to his enlistment.) It is noted by the evidence he provided that he was not generally a good service member during his service as he restarted his marijuana use shortly after he enlisted and in a few years started using cocaine and it appears that it was only through luck that he was caught using marijuana only once. It is noted that the applicant was only halfway through his second enlistment, not closed to finishing his last tour, and 24 years old when he was given his first Article 15.

4. Considering the offenses for which the applicant was charged and his record of service, the type of discharge given was and still is appropriate.

5. There is no statutory or regulatory right to a formal hearing. Formal hearings are granted when the Board determines that a case is so complex or the records so incomplete that only sworn testimony can provide the necessary information.
The applicant's case is not complex and complete records are available.

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

__AAO__ __KWL__ __DPH__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002074311
SUFFIX
RECON
DATE BOARDED	2002/09/24
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	1986/10/22
DISCHARGE AUTHORITY	AR 635-200, ch 10
DISCHARGE REASON	A70.00
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.00
2.
3.
4.
5.
6.