MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           17 March 1999                    
	DOCKET NUMBER:   AR1999018248

	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	
	Ms. Judy L. Blanchard		Analyst	

  The following members, a quorum, were present:

	Mr. Ted S. Kanamine		Chairperson	
	Mr. Orville W. Troesch, Jr.		Member	
	Mr. James P. Steuve		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:  In effect, that his general discharge be upgraded to an honorable discharge.

APPLICANT STATES:  No contention submitted.

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

The applicant reenlisted in the Regular Army on 22 March 1968, with 2 years, 
6 months and 25 days of honorable active service, which included a tour in Vietnam and a promotion to pay grade E-4. 

On 28 January 1969, the applicant was convicted by a special court-martial of having in his possession a switchblade knife and for having several ounces of Marijuana.  He was sentenced to confinement at hard labor for 4 months and a reduction to pay grade E-1.

On 21 April 1969, the applicant accepted nonjudicial punishment (NJP), under Article 15, Uniform Code of Military Justice (UCMJ), for two occasions of leaving his appointed place of duty without proper authority.  His imposed punishment was 14 days restriction and extra duty.

On 19 January 1970, the applicant accepted an NJP, under Article 15, UCMJ, for willfully disobeying a lawful order.  His imposed punishment was 14 days restriction and extra duty.

The facts and circumstances pertaining to the applicant’s discharge are missing from his file.  However, the Report of Transfer or Discharge, DD Form 214, indicates that on 23 April 1970, the applicant was discharged in pay grade E-1, under the provisions of Army Regulation 635-212, for unfitness (Drug addiction or possession of a habit forming narcotic drugs or Marijuana), with a discharge UOTHC.  He had completed a total of 4 years, 7 months and 26 days of creditable active service.  He was awarded the National Defense Service Medal, the Vietnam Service Medal and the Republic of Vietnam Campaign Medal.

Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  That regulation provided, in pertinent part, that commanders would separate a member when, in the commander’s judgement, it was clearly established that the member would not develop sufficiently to become a satisfactory soldier.  When separation for unfitness (misconduct), a discharge UOTHC was normally considered appropriate.

On 8 October 1980, the Army Discharge Review Board (ADRB) granted partial relief in the form of a general discharge.  The ADRB decision was based on the 
applicant’s overall record of service as, well as a determination that the provisions of the Laird Memorandum applied.  

Under the Department of Defense Memoranda of 7 July and 13 August 1971, the latter sometimes known as the Laird Memorandum, administrative discharges under other than honorable conditions, issued solely on the basis of personal use of drugs, or possession of drugs for the purpose of such use, will be reviewed for recharacterization; that under such policy, each Secretary of a military department is authorized to issue a discharge under honorable conditions upon establishment of facts consistent with this policy. In a memorandum dated 
28 April 1972, the Department of Defense expanded this policy to include review of punitive discharges and dismissals resulting from prior approved sentences of courts-martial.  The policy was applicable only to discharges which were executed on or before 7 July 1971, or issued as a result of a case in process on or before 7 July 1971.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), 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 the aforementioned requirement.

2.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant’s overall record of military service.  

3.  The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.

4.  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

__TSK___  __OWT___  __JPS___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999018248	
SUFFIX		
RECON		
DATE BOARDED	19990317	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19700423	
DISCHARGE AUTHORITY	AR635-212.  .  .  .  .  	
DISCHARGE REASON	A51.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.53	
2.		
3.		
4.		
5.		
6.