RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  26 April 2007
	DOCKET NUMBER:  AR20060013055 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.



	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his under other than honorable conditions (UOTHC) discharge be upgraded to a general discharge (GD), under honorable conditions; that his grade be restored to master sergeant (MSG)/E-8; and that his retirement order be corrected to show that he retired as a MSG/E-8 versus a private/E-1.  In the alternative, he requests that he be retired as a sergeant first class/E-7, the last grade he held satisfactorily.

2.  The applicant states: 

	a.  On 14 June 1994, he was attached to Headquarters, U.S. Army Garrison, Fort Dix, New Jersey, for annual training as a Reservist.  He was detained by military police for possession of marijuana and he was subsequently charged with violations of the Uniform Code of Military Justice (UCMJ).

	b.  During the Article 32 hearing, the police officers conceded that they did not suspect that he had committed or was going to commit any crime at the time he was detained.  The military prosecutor advised his attorney that the Government would accept a Chapter 10, in lieu of trial by court-martial, and his attorney advised him there was a 90 percent chance of winning the case because he believed the military judge would conclude that he had been illegally detained and the evidence would be excluded.

	c.  Because of his employment as a vocational school teacher, he did not want to miss the start of the school year, and after discussing the case with his attorney, he chose to request the Chapter 10 in order to return to his civilian job rather than wait for a court-martial.  

	d.  In hindsight he should have heeded the recommendation of his attorney and proceeded to general court-martial where he, most likely, would have been found not guilty on all charges.  However, because of the pressure on him to return to his civilian career as a school teacher, it overtook his reasoning, and he requested a Chapter 10.  He was concerned that his family and colleagues at the school would become aware of the charges against him if he proceeded to trial.

	e.  Prior to the incident in question, his service was impeccable, including his active duty service in the Republic of Vietnam, where he was first introduced to marijuana.  

	f.  Since his discharge, he has been a productive member of society.  He returned to his teaching career and plans on retiring in two years.

	g.  It is extremely important to note that he received an administrative discharge, as opposed to a punitive discharge.   

	h.  There is no indication the general court-martial convening authority (GCMCA) was briefed on the possibility of issuing him a GD.  It is speculative at best that the GCMCA was even adequately briefed on his options or the fact that the applicant held the grade of SFC satisfactorily.  It is indisputable that his discharge packet was computer-generated, so there is no guarantee that the GCMCA knew of the profound and unjust consequences of assigning a UOTHC discharge.  

	i.  A GD would have been the appropriate punishment for his admittedly foolish, albeit, only act of misconduct.  However, it was an isolated incident.  Therefore, as a matter of law, he is entitled to an upgrade of his discharge, and as a matter of equity his grade should be restored.  

	j.  He admits that he was in possession of marijuana.  He denies that he intended to distribute it.  The evidence overwhelmingly shows that he had neither the means nor the intent to do so.  Notwithstanding the charges leveled against him, this was only a case of marijuana possession.  This is a critical fact since the Army, as a policy, allows other Soldiers who possess marijuana to leave the Army without an UOTHC.  The regulation does not require a Soldier be separated for wrongful use of marijuana, only that he be processed for separation.  A Soldier may petition his or her case to a formal board of inquiry under the provisions of Army Regulation 15-6.  Additionally, regulations empower a Soldier to waive their right to a board of inquiry contingent upon receiving a GD.  Therefore, his discharge was a rush to judgment and his offenses were overcharged.  

	k.  Army regulations allow a GD in his case, and expressly state that an honorable discharge (HD) will not be ruled out because of CM convictions or non-judicial punishment under the UCMJ.  

3.  The applicant provides a copy of his discharge packet and all associated documents and a copy of his previous Army Discharge Review Board (ADRB) decision, dated 10 June 2005.





CONSIDERATION OF EVIDENCE:

1.  The applicant was a member of the U.S. Army Reserve (USAR) on annual training at the time of the incident which led to his discharge.  The applicant had nearly 29 years of service in the USAR and attained the grade of MSG when court-martial charges were brought against him. 

2.  Criminal Investigation Command (CID) Preliminary Report, dated 14 June 1994, shows the applicant was observed parked in an unlighted area by military police.  Upon approaching the vehicle, an odor of marijuana was detected.  A consent search of the vehicle revealed a hand rolled marijuana cigarette and other drug paraphernalia and marijuana cigarettes.  

3.  On 15 June 1994, the applicant tested positive for marijuana.

4.  On 16 June 1994, the applicant was involuntarily extended on active duty for the purpose of completing an investigation initiated with a view to trial by court-martial.  

5.  On 11 July 1994, the applicant was charged with wrongfully possessing
58 grams of marijuana, more or less, with the intent to distribute the said controlled substance; wrongful use of marijuana; wrongfully possessing drug paraphernalia, to wit:  one plastic vial, brown in color, containing, marijuana; one ammunition canister, green in color, containing marijuana; three cigarette lighters; one metal scale; "Test Free: the ultimate defense against urine tests!," with instructions; one wooden box containing one blue flannel draw string bag with traces of marijuana; one metal clamp, with traces of tetraphydrocannabinol (THC); one plastic ziplock bag containing a smaller open plastic bag which contained marijuana;  one film canister, black in color with gray cover, containing marijuana; one film canister, black in color with black cover, labeled in part "KODAK" containing numerous handrolled marijuana cigarette butts with partially burnt marijuana; two Primatene mist inhalers with marijuana residue inside the mouth pieces; one wooden box containing a one-hit marijuana pipe and a storage chamber which contained marijuana; two metal roach clips with traces of THC; and one plastic ziplock bag containing marijuana.

6.  On 9 August 1994, after consulting with counsel, the applicant submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Enlisted Separations),
chapter 10.  Paragraph 2 of his request, in pertinent part, states:  "By submitting this request for discharge, I acknowledge that I understand the elements of the offense(s) charged and am guilty of the enclosed charge(s) against me, or of a lesser-included offense which carries the punishment of a Bad Conduct Discharge."

7.  The applicant also indicated in his request that he understood he could be discharged under other than honorable conditions, furnished an UOTHC Discharge Certificate, and that he may be deprived of many or all Army 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 UOTHC discharge.  The applicant voluntarily waived his right to a medical and/or mental evaluation, and did not submit a statement in his own behalf.  

8.  On 12 August 1994, the applicant's defense counsel published a Memorandum for Record, indicating that he advised the applicant of his options concerning his court martial charges.  After completion of the Article 32 investigation (Preliminary Hearing), his counsel determined that the applicant had a 90 percent chance of winning his case at trial.  Even if the applicant lost the case at trial, his counsel believed he had a 90 percent chance of having the case overturned on appeal.  Based on that assessment, he felt that it would be in the applicant's best interest not to submit a Chapter 10 request.  However, in a Chapter 10, the applicant would have had to admit guilt to at least one charge.  In this case, he could admit to possession of a "roach clip" which would be considered drug paraphernalia.  The applicant, contrary to his advice, submitted the Chapter 10 because he felt he needed to be back home in time for the start of the school year.

9.  On 9 August 1989, the applicant was notified that he was eligible for retired pay at age 60 (20 year letter).  On 17 December 2003, he was placed on the retired list and authorized retired pay in the grade of private/E-1.  There is no evidence that the applicant or the U.S. Army Human Resources Command requested a grade determination review of the applicant prior to placing him on the retired list.  The applicant reached 60 years of age on 16 December 2003.

10.  The unit commander recommended approval of the applicant's request for discharge.  The intermediate commanders recommended that the applicant's request for discharge be approved and that he be furnished an UOTHC discharge.

11.  On an unknown date, the separation authority approved the applicant's request for discharge and directed he be issued an UOTHC discharge.  

12.  Accordingly, on 16 August 1994, the applicant was discharged with an UOTHC Discharge Certificate under the provisions of Army Regulations 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  

13.  On 10 June 2005, the ADRB denied the applicant's petition to upgrade his discharge.

14.  Army Regulation 635-200 (Enlisted Personnel Separations) 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 a discharge for the good of the service in lieu of trial by court-martial.  The requests may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  Army policy states that although an honorable or general discharge is authorized, an UOTHC discharge is normally considered appropriate.  However, the separation authority may direct a GD if such is merited by the Soldier's overall record during the current enlistment.

15.  Paragraph 1-14, Army Regulation 635-200, stipulates that when a Soldier is discharged UOTHC, the separation authority will direct an immediate reduction to the lowest enlisted grade.  Paragraph 1-16 clearly delineates the separating authority's duties and responsibilities.  

16. Paragraph 2-2 and 2-4, Army Regulation 635-200, stipulate that when an involuntary separation requires the Notification Procedures or Administrative Board Procedures, a Soldier is entitled to an administrative separation board when he or she has had 6 or more years of total active and reserve service on the date of initiation of recommendation for separation, or when he or she has been recommended for a UOTHC discharge.  A request for discharge under the provisions of Chapter 10 is a voluntary request for discharge.  Therefore, Soldiers are not entitled to appearance before an administrative separation board. 

17.  Army Regulation 635-200, paragraph 3-7a, 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.

18.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is 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 the Soldier’s separation specifically allows such characterization.

19.  Pursuant to Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations), the AGDRB reviews cases referred for purposes of secretarial grade determinations under the following or similar statutes: sections 1212, 1370, 1371, 1372, 1401, 1406, 3963, 3964, United States Code.  Additionally, the AGDRB will review any other cases referred by the SA.  Paragraph 2-5 stipulates, in pertinent part, that service in the highest grade or an intermediate grade normally will be considered to have been unsatisfactory when reversion to a lower grade was owing to misconduct. Paragraph 2-6 states that if service in the highest grade held was unsatisfactory, the soldier can be deemed to have served satisfactorily in the next lower grade actually held, unless paragraph 2-5 applies.
DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  

2.  In requesting a Chapter 10 discharge, the applicant admitted guilt to the stipulated or lesser-included offenses under the UCMJ.  The Board noted that many of the applicant's contentions related to evidentiary and procedural matters which should have been addressed in a trial by court-martial.  The applicant was provided the opportunity to proceed to court-martial in order to present evidence in his case; however, against the advice of counsel, he voluntarily submitted a request for discharge in lieu of trial by court-martial.

3.  In his issues before the Board, the applicant again admits to his guilt of marijuana use, although he characterizes the event as an isolated incident.  However, it appears, given the comprehensive list of drug paraphernalia and the amount of marijuana in his possession at the time of his detention, that it is unlikely that his marijuana usage was an isolated event. 

4.  The request for discharge in lieu of trial by court-martial is a voluntary request for discharge.  Therefore, the applicant was not entitled to an administrative separation board. 

5.  Army Regulation 635-200, paragraphs 1-22 clearly provides guidance to commanders having separation authority.  The applicant failed to provide compelling evidence in support of his contention that the separation authority failed to consider him for a GD.  Further, there was no evidence of arbitrary or capricious actions by the command.  The Board was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the discharge process.

6.  The ADRB, after careful review of the applicant's evidence, denied his petition for an upgrade of his service.

7.  Because the applicant received a UOTHC discharge, Army regulations require that he be reduced to the lowest enlisted grade.  As such, he was reduced from MSG/E-8 to private/E-1 and placed on the Reserve retired list as a private/E-1.  Due to the nature and extent of the applicant's misconduct as reflected in the underlying evidence for which he submitted a chapter 10 request, there is no justification to advance him to SFC on the Reserve retired list.

8.  Given the above, the Board found that the applicant has not submitted evidence of sufficient merit to refute the type and nature of his discharge.  As such, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is no justification to change the characterization of his service or restore him to the grade of MSG or to SFC. 

9.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__wdp___  __wfc___  __ded___  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



							William D. Powers
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20060013055
SUFFIX

RECON

DATE BOARDED
20070426
TYPE OF DISCHARGE
(UOTHC)
DATE OF DISCHARGE
19940816
DISCHARGE AUTHORITY
AR 635-200, Chap 10
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.7000
2.

3.

4.

5.

6.