MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:           10 February 2000                  
	DOCKET NUMBER:   AR1999026048

	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.

	Ms. McKim-Spilker		Analyst	

  The following members, a quorum, were present:

	Mr. Van B. Cunningham 		Chairperson	
	Mr. James P. Steuve		Member	
	Mr. Kenneth L. Wright		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:  That his discharge under other than honorable conditions (UOTHC) be upgraded to honorable conditions (HD).

APPLICANT STATES:  In effect, that his misconduct was because of a drug problem; that his problem was never addressed nor was he offered assistance to help overcome his drug problem.

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

On 26 May 1976 the applicant enlisted in the Regular Army (RA) for a period of 3 years.  He was assigned to Fort Bliss for basic combat training and for advanced individual training (AIT) in military occupational specialty (MOS) 16P (Chaparral Crewman).  He was assigned to Fort Stewart, Georgia, on 7 October 1976 for his first permanent duty station.

The applicant’s record documents that the highest permanent rank he held on active duty was private first class/E-3 and the record contains no documented acts of valor, achievement, or service warranting special recognition.   

On 15 October 1976 the applicant went AWOL.  He returned to military control on 27 October 1976.  The applicant had two more periods of AWOL:  30 October 1976-2 November 1976, and 8 November 1976 to 7 December 1976.  He was returned to military control at Fort Dix, New Jersey.

On 7 January 1977 the applicant was convicted by summary court-martial for his periods of AWOL.  His sentence imposed was reduction to private/E-1 and the forfeiture of $200.

On 10 February 1977 he was reassigned to Fort Lewis, Washington.

During his tour of duty at Fort Lewis, Washington, the applicant had 2 more periods of AWOL:  4 January 1978 to 2 January 1980; and, 9 February 1980 to 9 December 1980.  

On 8 October 1980 he was tried and convicted by the District Court of Harvey County, Newton, Kansas, for felony insufficient funds-checks.  He was sentenced to a minimum for 1 year confinement and probation for 2 years.  He served 120 days in civilian confinement.

On 9 April 1981 he was returned to duty at Fort Carson, Colorado.  On 8 June 1981 the applicant departed AWOL and remained absent until 4 November 1981.

On 24 November 1981 he accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, for his last three periods of AWOL.  His punishment imposed consisted of reduction to private/E-1, forfeiture of $250 per month for 2 months, and 30 days restriction and extra duty (suspended to 24 January 1982).

On 23 March 1982 the unit commander notified the applicant of his intent to separate him under the provisions of AR 635-200, Chapter 14, by reason of misconduct – conviction by a civilian court.  The applicant was given a complete physical examination as part of his separation process and he did not indicate that he had a drug problem or that he needed medical assistance because of a drug problem.

On 5 May 1982 the separation authority approved the applicant’s discharge.  Thereafter, he was separated on 24 May 1982 under other than honorable conditions for misconduct.  He was credited with 1 year, 1 month, and 9 days active military service, and 1,080 days lost time.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. 

There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

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.  There is no evidence of record to substantiate the applicant’s claim that the military authorities were aware of his drug problem or that the Army failed to assist him with drug rehabilitation. 

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.  He had 6 periods of AWOL, received a summary court-martial, accepted NJP for his absences, and was convicted by civilian authorities of a felony and confined for a period of 120 days.  The applicant’s personal conduct and performance of duty fell below that meriting either an honorable or general discharge.  

3.  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.

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

___vbc__  ___jps___  ___klw__  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999026048 	
SUFFIX		
RECON		
DATE BOARDED	20000210	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19820524	
DISCHARGE AUTHORITY	AR 635-200 C14	
DISCHARGE REASON	6100	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES        1.  9317		
2.  9217		
3.  0100		
4.		
5.		
6.