MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 1 April 2003
         DOCKET NUMBER: AR2003084878

         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. Luis Almodova		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Thomas B. Redfern, III		Member
Mr. Thomas E. O'Shaughnessy, 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: In effect, that his under other than honorable conditions discharge be upgraded to a General (Under Honorable Conditions) discharge.

APPLICANT STATES: In effect, in a lengthy self-authored summary of events that led to his discharge from the Army, the applicant includes the following:

After reenlisting, he requested an MOS (Military Occupational Specialty) change to Radio Equipment Operator. He was shipped to Fort Sill, Oklahoma, for cross training. He felt like he was being treated like a new recruit by the first sergeant and the powers that be and he did not get along with the NCOs (Noncommissioned Officers) because of this. He believes that they had it in for him.

He met another Specialist 4 who smoked marijuana with him and gave him some marijuana to hold for him. He didn't know many people on Fort Sill so he agreed to hold it for him. The other soldier promised to give him some for holding it. He put the marijuana in his wall locker and within 2 hours, the CID (Criminal Investigations Division) arrived and searched his room. One of the guys had a joint on the table in full view and they were immediately ordered to open their wall lockers and get up against the wall. The marijuana, which was in a drawer in a brown paper bag, was found. The CID agents knew where it was and what it was. The agents found small amounts of marijuana in one of the other guy's uniform and they were taken to jail.

He was advised by the lawyer that was appointed to represent him to take a discharge or run the risk of doing hard time in Leavenworth. Being fairly immature and unsophisticated, he determined not to fight for what he thought would be or at least become a career position. He had a fear of being locked up and told the lawyer that he would take the discharge. He claims that he was never told prior to that time anything about the type of discharge that he would receive but he never thought it would be a dishonorable discharge.

He adds that: he has suffered immeasurably since that time as he has spent the last 20 years in virtual seclusion, living in the country and working mostly blue-collar hard labor positions; he has more than paid the price for an immature indiscretion and for being in the wrong place at the wrong time; and that he was buffaloed into the position that he took and if he had the opportunity to live it over, he would take a chance in the military court system. He is not a criminal and even in the worst of time has never been. He and his family deserve a reprieve. He did not know what he was doing.

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He closes by naming a number of this country's leaders, past and present, who had an encounter with marijuana and led productive lives; some leaders were
entrusted with this country's security. They, he says, did not come up lacking due to their minor indiscretions and he assures the Board that neither will he. Finally, he states, that if he could re-enter the service at his present age of 42, in order to make the record straight, he would not hesitate to do so. He believes in his country, comes from a military family, and would do nothing to harm it.

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

The applicant enlisted in the US Army Reserve for 6 years on 25 November 1977 at the age of 17 years, 5 months and 25 days. He enlisted in the Regular Army for 3 years on 27 June 1978 with guarantee training in the MOS 05C, Radio Teletypewriter Operator, when he had attained the age of 18 years and 27 days.

When the applicant enlisted in the US Army Reserve and in the Regular Army, then reenlisted in the Regular Army he signed a DD Form 4, Enlistment or Reenlistment Agreement – Armed Forces of the United States, which bound him to certain understandings, including the following:

"I understand that the United States Constitution, a wide variety of statutes and regulations, and military customs govern the conduct of members of the Armed Forces and impose responsibilities and obligations upon me which I would not have if I had remained a civilian. I understand that only some of the responsibilities and obligations, which I am undertaking, are listed as examples in this and the next paragraph and that others may be required of me during my membership in the Armed Forces. I understand that:

a. my enlistment is more than an employment agreement; that I will, upon taking the oath of enlistment, become a member of the Armed Forces of the United States, and as such, I will be: (1) subject to the criminal justice system known as the Uniform Code of Military Justice which means, among other things, that I may be tried by military court operating under special military rules; (2) require to obey all lawful orders given me by authorized persons; (3) subject to separation from the service before the expiration of my term of enlistment and may, if my behavior fails to meet certain standards, be discharged during or at the end of my enlistment with a certificate reflecting less than honorable service which may be a detriment in seeking further employment…."

He completed one-stop unit training at Fort Gordon, Georgia, and was awarded the MOS 05C.

On 15 November 1978, the applicant departed Fort Gordon en route to Germany. He was assigned to Headquarters and Headquarters Company, 1st Infantry Division (Forward), with further assignment to the 1st Signal Support Company, 1st Support Battalion. He was promoted to Specialist 4 in that unit on
4 September 1980.

On 30 January 1981, when he was 20 years and 8 months old, the applicant was honorably discharged for the purpose of immediate reenlistment. The applicant reenlisted for 3 years, for an Army Service School Reenlistment Option, to attend training in the MOS 31V, Tactical Communications Systems/Operator/Mechanic.

The applicant was reassigned to Headquarters and Headquarters Company, 1st Battalion, 63rd Armor, at Fort Riley, Kansas, with temporary duty en route at Fort Sill, Oklahoma, to attend his MOS-producing school. He reported to Fort Sill on 22 April 1981.

On 29 May 1981, CID personnel apprehended the applicant and another soldier. Investigation revealed that 5 small plastic bags, which contained approximately 66.5 grams of marijuana, having an estimated street value of $266.00 were found in the applicant's wall locker.

On 4 June 1981, the applicant was charged with wrongful possession and sale of marijuana.

Evidence of record shows that on 19 June 1981, the applicant submitted a request for 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 this same date, the applicant consulted with legal counsel and elected not to submit a statement in his own behalf. In his request, the applicant acknowledged that he understood that he could request discharge for the good of the service because charges had been preferred against him under the Uniform Code of Military Justice (UCMJ) which authorized imposition of a bad conduct or dishonorable discharge. He stated that he was making his request of his own free will and had not been subjected to coercion whatsoever by any person; that he understood he could be denied some or all veterans' benefits as a result of his discharge; that he may be deprived of rights and benefits as a veteran under both Federal and State law; and that he may encounter substantial prejudice in civilian life by reason of an under other than honorable discharge.

The unit commander and intermediate commanders recommended approval of the request. On 25 June 1981, the separation authority, a brigadier general, approved the request and directed that a discharge certificate, Under Other Than Honorable Conditions (UOTHC), DD Form 794A, be issued.

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The applicant was discharged on 30 June 1981 in the rank and pay grade Private, E-1, under other than honorable conditions, for the good of the service, in lieu of trial by court-martial, under the provisions of Army Regulation 635-200, chapter 10. The record contains no documentary evidence of acts of valor, achievement, or service warranting special recognition. On the date of his discharge, he had a total of 3 years and 4 days creditable active Federal service of which 5 months and 1 day active Federal service were served in the enlistment period under review, and a total of 7 months and 2 days were prior inactive service. The applicant had no lost time due to absence without leave or confinement.

The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations; and, on 28 September 1982, the ADRB notified him that his request for an upgrade of his Under Other Than Honorable Conditions Discharge had been denied.

Industrial hemp has deep roots in American history and commerce. George Washington grew hemp at Mount Vernon, his home in Virginia, to make rope. The plant was a valuable agricultural crop until the anti-drug fervor of the 1930s when the use of and growing of marijuana was outlawed in the United States in 1937. (www.sfgate.com/cgi-bin/article)

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, at any time after the charges have been preferred, 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, defines a general discharge as a separation from the Army under honorable conditions. When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for separation specifically allows such characterization.

Army Regulation 635-5 governs the preparation and distribution of the DD Form 214. The regulation specifies in 2-4h (18 (c)), for enlisted soldiers with more than one enlistment period during the time covered by this DD Form 214, enter "Immediate Reenlistment this Period (specify dates). However, for soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except 'honorable' enter

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'Continuous Honorable Active Service From' (first day of service which DD Form 214 was not issued) Until (date before commencement of current enlistment). Then, enter the specific periods of reenlistment as prescribed above."

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 in his self-authored summary of events that led to his discharge from the Army.

2. The evidence of record shows the applicant was charged with the commission of a multiple of offenses punishable with a punitive discharge under the Uniform Code of Military Justice (UCMJ), the possession and sale of marijuana.

3. The Board noted that, after consulting with defense counsel, the applicant voluntarily, and in writing, requested separation from the Army under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial. In doing so, the applicant admitted guilt to the stipulated offenses under the UCMJ. There is no indication that the request was made under coercion or duress.

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 noted that the characterization of service for this type of discharge is normally under other than honorable conditions and that the applicant was aware of that prior to requesting discharge.

5. While the applicant may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date. Additionally, it is noted that it was the applicant who requested a discharge, for the good of the service, to avoid the possibility of a punitive discharge and having a felony conviction on his records.

6. The Board is convinced that the reason for discharge and the characterization of service were both proper and equitable. The Board has determined that the
quality of his service did not meet the standards of acceptable conduct and performance expected of Army personnel. Through his misconduct, the applicant diminished the quality of his service below that meriting an Under Honorable Conditions (General) Discharge; therefore, the applicant is not entitled to an upgrade of his Under Other Than Honorable Conditions Discharge to an Under Honorable Conditions (General) Discharge.

7. The Board considered the applicant’s entire record of service. There is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition.

8. 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 provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that the applicant’s service mitigated the misconduct or poor duty performance. The applicant has failed to submit evidence that would satisfy this requirement.

9. The Board further found no evidence that the applicant was any less mature or sophisticated than other soldiers of the same age who successfully completed military service.

10. Alleged stories about the use of marijuana by past and present leaders and celebrities have no bearing on this case. As a soldier, the applicant was under obligation to the United States Army to abide by its established customs and traditions, and the Uniform Code of Military Justice.

11. 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.

NOTE: The Army Review Boards Agency, Support Division, will be requested to administratively correct Block 18, Remarks, of the applicant’s DD Form 214 to show, "Immediate Reenlistment This Period: 780627 – 810129; 810130 – 810630. Continuous Honorable Active Service from 780627 until 810129."

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__aao___ __tbr___ __teo___ DENY APPLICATION

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

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INDEX

CASE ID	AR2003084878
SUFFIX
RECON
DATE BOARDED	20030401
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	19810630
DISCHARGE AUTHORITY	AR 635-200, Chapter 10
DISCHARGE REASON	A94.07
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	144.0000
2.	144.0143
3.
4.
5.
6.