IN THE CASE OF:	  

		BOARD DATE:	  29 September 2011

		DOCKET NUMBER:  AR20110002792 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests reconsideration of his application to upgrade his discharge.

2.  The applicant states the Board's original decision did not give adequate consideration to all of the facts concerning his case, including that:

* he was serving in pay grade E-2 when he got to Germany and was advanced to pay grade E-3 based on completion of a special assignment along the border
* he was approached by a Criminal Investigation Division (CID) agent who asked him to help her buy some marijuana or hashish  
* he told her she could get what she needed in the barracks, he did not know she was going to also charge him
* he requested a chapter 10 discharge in lieu of trial by court-martial so that he could get married
* he qualified as a sharpshooter with the M-16 rifle and as an expert with the hand grenade
* he was a group leader who did his job no matter what
* he is not asking for all Department of Veterans Affairs (VA) benefits; only for medical and funeral benefits
* he would return to active duty if he could; but he is age 50 and has a bad back
* he was very young and he is sure that everyone has done something wrong at some point in their life; he loves his country 

3.  The applicant provides three pages of instructions, undated, concerning his duties and responsibilities as a group leader for group travel on a commercial airline.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100012845, on 20 October 2010.

2.  The applicant's contention that the previous Board did not take all of his accomplishments into consideration is considered a new argument that requires consideration.

3.  On 25 June 1979, the applicant enlisted in the Regular Army and he was assigned to Fort Leonard Wood, MO to attend basic and advanced individual training on 29 June 1979,  He completed the training requirements and he was awarded military occupational specialty (MOS) 64C (Motor Transport Operator).  

4.  On 12 October 1979, he went on casual leave enroute to Germany.  On
30 October 1979, he was assigned to Headquarters and Headquarters Troop, 3rd Squadron, 12th Cavalry, 3rd Armored Division, Germany. 

5.  After the applicant was charged with six specifications of possessing, transferring, and selling marijuana on 20 and 21 May 1980 he consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  

6.  On 18 September 1980, the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, with an under other than honorable conditions discharge.

7.  The following actions are noted:

   a.  the applicant did qualify as a sharpshooter with the M-16 Rifle and as an expert with the hand grenade.
   
   b.  a statement signed by a female CID agent describes how, by prior arrangement, she and a confidential informant met with the applicant in an automobile on 20 May 1980.  The CID agent purchased $50 worth of marijuana from the applicant; they were also introduced to another Soldier who agreed to sell them LSD (lysergic acid diethylamide) and more marijuana.
   c.  a second statement written by the CID agent describes how, on 21 May 1980, she and the confidential informant met with the applicant in his barracks and after witnessing the applicant tell another Soldier he would sell to him after finishing with her the applicant concluded the pre-arranged transaction.

   d.  except for a memorandum (applicant's initial request for discharge) from the Staff Judge Advocate to the 3rd Armored Division Commander, all the separation processing documents indicate he was serving in pay grade of E-2 at the time.  His DA Form 2-1 (Personnel Qualification Record) does not indicate he held a pay grade higher than pay grade E-2 and there are no documents in his record to show he was advanced to pay grade E-3.  There is also no evidence available to show he completed a special assignment.

   e.  on 20 November 2003, in an effort to obtain VA benefits, the applicant informed a U.S. Senator that he had a general discharge. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the previous Board did not adequately take into consideration that he was advanced to pay grade E-3 due to the completion of a special assignment along the border, that a CID agent asked him to help her buy some marijuana, that he qualified as a sharpshooter with the M-16 Rifle and as an expert with the hand grenade, and that he was a group leader.  He also contends that he requested the chapter 10 discharge in lieu of trial by court-martial so that he could get married.  He was young at time, he loves his country, and he is making this request so that he may qualify for VA medical and funeral benefits.

2.  The applicant provided no evidence to substantiate his assertions and aside from there being a record of his weapons qualifications there is no substantiating evidence in the available records.  His military records substantiate that he qualified as a marksman with the M-16 Rifle and as a sharpshooter with the hand grenade.

3.  Even though his initial request for discharge shows his pay grade as E-3, the available records do not contain any orders and his DA Form 2-1 does not indicate he held a pay grade higher than E-2.  However, the applicant's pay grade is not relevant.  He committed a criminal offense when he violated the Army's drug policies by selling drugs and he voluntarily requested a discharge to avoid prosecution for dealing drugs.  Therefore, he was administratively discharged under the provisions of chapter 10, Army Regulation 635-200, due to conduct triable by court-martial, with an under other than honorable conditions discharge in pay grade E-1.
4.  Regardless of the approach the CID agent used, the applicant does not deny that he sold illegal drugs.

5.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons were appropriate considering all the facts of the case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ____X___  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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 to amend the decision of the ABCMR set forth in Docket Number AR20100012845 on 20 October 2010.



      ___________X___________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.




ABCMR Record of Proceedings (cont)                                         AR20110002792



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ABCMR Record of Proceedings (cont)                                         AR20110002792



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