MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        


                  BOARD DATE: 11 September 2003
                  DOCKET NUMBER: AR2003083606

         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. Rosa M. Chandler		Analyst

The following members, a quorum, were present:

Mr. Stanley Kelley		Chairperson
Mr. Christopher J. Prosser		Member
Mr. John T. Meixell		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 undesirable discharge (UD) be upgraded to an honorable discharge.

APPLICANT STATES: In essence, that he was advised by military counsel that a general discharge was, in effect, undesirable, therefore, he accepted the UD. He expects quick action and will report the date of the Board's action to his Congressional representative and to the New York Times.

EVIDENCE OF RECORD: The applicant's military records show:
That, on 17 February 1972, he enlisted in the Regular Army for 3 years. He completed all of the required military training and was awarded military occupational specialty (MOS) 12C (Bridge Specialist). In July 1972, he was assigned to Germany.

The applicant was initially assigned to Headquarters and Headquarters Company (HHC), V Corps. While assigned to HHC, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice on 26 March 1973 for failing to go to guard mount on 18 March 1973, he was punished by forfeiture $35 pay per month for 1 month. On 11 June 1973, he accepted NJP for failing to obey a lawful order to report for guard duty on 2 June 1973, he was punished by reduction to Private (PVT/E-2), forfeiture of $50 pay per month for 1 month, and 7 days of extra duty; and on 6 July 1973, he accepted NJP for absenting himself from his place of duty on 25 June 1973, he was punished by forfeiture of $75 pay per month for 1 month.

In July 1973, the applicant was transferred to the 516th Engineer Company where, on 12 June 1974, he accepted NJP for failing to go to his appointed place of duty on 7 June 1974 and he was punished by forfeiture of $60 pay per month for 1 month and 7 days of extra duty.

In July 1974, German police implicated the applicant in the receipt of a large quantity (1/2 Kilo) of hashish for resale. On 15 November 1974, general court-martial (GCM) charges were preferred against the applicant for wrongful possession of 300 grams, more or less, of marijuana in the hashish form during March and June 1974. He was also charged with wrongfully having in his possession 2000 grams, more or less, of marijuana in the hashish form between 4 - 7 July 1974. His trial date was scheduled for 25 February 1975. The applicant consulted with legal counsel and requested separation under the provisions of chapter 10, Army Regulation (AR) 635-200 for the good of the service in lieu of trial by court-martial.

On 19 November 1974, the applicant was notified of the initiation of an Article 32 Investigation for charges of wrongful possession of marijuana in the hashish form.
On 27 January 1975, a Bar to Reenlistment was initiated against the applicant for being involved in a discreditable incident of illegal trafficking in narcotics, January-July 1974 that involved the Hanau, Germany, civilian community. On the same date, the applicant appealed the Bar to Reenlistment by stating that it was an unjustified blemish on his record when he had not been convicted of a misconduct offense. On 12 February 1975, the Bar to Reenlistment was approved.

A Criminal Investigation Division (CID) Report of Investigation, dated 20 March 1975, disclosed that between September 1973 and 12 July 1974, in the vicinity of Hanau, the applicant and several other individuals conspired to sell and sold an estimated 20 to 25 grams of marijuana in the hashish form. No further action was taken because the applicant had been referred to a GCM and was awaiting action on his request for discharge under the provisions of chapter 10.

The applicant's records no longer contain all of the facts and circumstances surrounding the discharge process. An Army Discharge Review Board (ADRB) Case Report, dated 30 March 1982, shows the applicant consulted with legal counsel and, on 27 February 1975, requested separation under the provisions of chapter 10, AR 635-200, in lieu of trial by court-martial. On 10 March 1975, a mental status evaluation determined that he was qualified for separation. His request for separation was approved on 23 March 1975.

The applicant's records also contain a properly constituted DD Form 214 that was prepared at the time of separation and signed by the applicant. This document shows that, on 3 April 1975, he was separated with a UD in lieu of trial by court-martial under the provisions of chapter 10, AR 635-200. He had completed 3 years, 1 month, and 17 days of active military service. He had no recorded lost time.

On 30 March 1982, the ADRB denied the applicant’s request for an upgrade of his discharge.

AR 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 a 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. 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 available records show the applicant was discharged under the provisions of chapter 10, AR 635-200, due to conduct triable by court-martial. Although some of the facts and circumstances surrounding the discharge process are missing, the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge. He would have consulted with defense counsel and signed a statement indicating he had been informed that he could receive a UD and the ramifications of receiving such a discharge. He would have voluntarily requested discharge in writing to avoid trial by court-martial. In doing so, he would have admitted guilt to the stipulated offenses under the UCMJ. The Board presumes administrative regularity and the applicant has provided no information that would indicate the contrary.

3. The available record indicates the applicant's conduct was inconsistent with the Army’s standards for acceptable personal conduct and his overall quality of service does not warrant an upgrade of his discharge.

4. The Board found no evidence, and the applicant has provided none, to indicate he was misled to believe his UD represented service completed under honorable conditions or that his legal counsel was incompetent.

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

__sk____ __cjp___ __jtm___ DENY APPLICATION

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

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INDEX

CASE ID	AR2003083606
SUFFIX
RECON
DATE BOARDED	20030911
TYPE OF DISCHARGE	(UD)
DATE OF DISCHARGE	19750403
DISCHARGE AUTHORITY	AR635-200, Chap 10
DISCHARGE REASON	A70.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	144.7000
2.
3.
4.
5.
6.