MEMORANDUM OF CONSIDERATION

IN THE CASE OF:    

BOARD DATE:           
DOCKET NUMBER:   AC80-00559B
			   AR1998013873

	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. Loren G. Harrell		Director	
	Mr. Gerald E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Mr. Charles H. Lounderman		Chairperson	
	Mr. Fred N. Eichorn		Member	
	Mr. John Saputo		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)

APPLICANT REQUESTS:  Reconsideration of the Board's previous denial of his request to upgrade his bad conduct discharge (BCD).

APPLICANT STATES:  In effect, that he knows that what he did was wrong and asks that the Board consider his prior period of honorable war time service, the long period since his discharge and his good post-service conduct to afford him a compassionate and favorable review.  He avers that the discharge was unduly harsh and that a had he faced these same charges under current standards it would have resulted in far less sever punishment.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 30 June 1982 (COPY ATTACHED).

His prior honorable service, post service good conduct, and request for review under current standards, policies and practices constitute new argument that requires Board consideration.  He submits a current character statement from his minister.

Included in the applicant’s records are documents previously forwarded in conjunction with requests for reconsideration that should have been submitted for Board consideration.  These include a letter of character from his minister, a letter of character from his bank’s vice president and a letter of character from his employer attesting to his years of service and dedication to his job.

Department of Defense Directive 1332.28 (discharge review procedures and standards) provides, in pertinent part, that a discharge shall be deemed equitable unless the policies and procedures under which the applicant was discharged differ materially from those currently in effect, provided that the current policies or procedures represent a substantial enhancement of rights and there is substantial doubt that the same result would have obtained under the current standards.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 9 contains the authority and outlines the procedures for discharging individuals because of alcohol or other drug abuse.  A member who has been referred to ADAPCP for alcohol/drug abuse may be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program if there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical.

The Manual for Court-Martial, as then in effect, lists the maximum punishment for conviction of being drunk on duty as six months confinement, forfeiture of two-thirds pay for six months and a Bad Conduct Discharge.  The current maximum punishment is nine months confinement, total forfeiture of pay and a dishonorable discharge.

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 applicant’s military records show that he had honorable service from 1 April 1943 to 8 January 1946.  During this period of service he was awarded the Bronze Star Medal, a Good Conduct Medal, the European-African-Middle Eastern Campaign Medal with a bronze arrowhead, the World War II Victory Medal and the Combat Infantryman Badge.  He reenlisted on 4 August 1948 and was assigned to Fort Bragg, North Carolina

2.  A special courts-martial found the applicant guilty of for being drunk in public in uniform on 27 March 1950.

3.  On 12 June 1950, the applicant was found guilty by a special courts-martial of being drunk on duty 9 April 1950 and bring AWOL 20 to 26 April 1950.  The approved sentence included forfeiture of two-thirds pay for one month, confinement at hard labor for one month and to receive a bad conduct discharge.  In his own defense he admitted to having consumed alcohol a few hours before reporting for duty, however, he averred that he was sick not drunk on duty.  

4.  Reporting for duty under the influence of alcohol is a very serious offence at any time and at any location.  While, the Army’s policies and procedures have changed significantly, in that counseling and treatment are now available to soldiers with alcohol related problems, individuals are still held accountable for their misconduct..

5.  With the applicant’s war service, his good record and the prior alcohol related incident he might have been referred to the ADAPCP program under the current policies.  However, even if he were directed to the alcohol rehabilitation program, under the current procedures due to his rank and the nature of the offence he would have received at a minimum non-judicial punishment and most likely he would have been administratively discharged with an under other then honorable conditions discharge.  If his case were referred to court-martial the out come would most likely been the same as what he did receive.

6.  The current punishments for conviction by court-martial for drunk on duty are even more harsh then those standards under which the applicant was convicted.  Therefore, application of current standards would not result in an enhancement of the applicant’s rights nor can it be shown that the applicant would have received a less sever punishment.

7.  While the Board commends the applicant’s post service efforts, the overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

8.  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

__CHL_ _  __FNE__  ___JS_ __  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC80-00559
AR1998013873	
SUFFIX		
RECON	 	
DATE BOARDED	19990217	
TYPE OF DISCHARGE	 	
DATE OF DISCHARGE	 	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	Deny	
REVIEW AUTHORITY		
ISSUES         1.	105.01/31	
2.	A92.21/981	
3.	A93.19/853	
4.		
5.		
6.