MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            19 January 2000
	DOCKET NUMBER:   AR1999026615

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. John P. Infante		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 be upgraded to honorable.

APPLICANT STATES:  That his recuperation from knee surgery precluded his ability to participate in retraining and led to threatened charges of disobedience to an officer and failure to report.  He goes on to state that he accepted a less than honorable discharge in order to avoid prosecution on these charges and believes that it was unjust for him to have to do so because the medical condition was beyond his control.  He further states that the type of discharge limits the benefits available to him for a service connected disability and cannot be used as a recommendation in obtaining civilian employment.  He also states that he was convicted by a special court-martial for an offense involving less than an ounce of marijuana and was told that if he assisted the Criminal Investigation Division (CID) investigators in their continuing investigation, they would assist him at his trial.  However, they reneged on their promises.  This left him devastated and deeply depressed and resulted in his attempting suicide.  He continues by stating that his physical wounds were treated but his psychological wounds were ignored.

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

He enlisted on 14 September 1976 for a period of 3 years and training as a  multi-channel communication equipment operator.  He completed his training and was transferred to Fort Carson, Colorado on 24 March 1977.  He was promoted to the pay grade of E-3 on 1 September 1977.

On 20 September 1977 nonjudicial punishment was imposed against him for operating a military vehicle in a reckless manner.  His punishment consisted of a reduction to the pay grade of E-2 (suspended until 20 December 1977), a forfeiture of pay (suspended until 20 November 1977), and extra duty for 14 days.

On 21 November 1977 nonjudicial punishment was imposed against him for failure to go to his place of duty.  His punishment consisted of a reduction to the pay grade of E-2 and a forfeiture of pay.

He was convicted by a special court-martial on 19 June 1978 of the wrongful transfer of 1.29 grams of marijuana on 1 March 1978, the wrongful sale of 2.45 grams of marijuana on 1 March 1978, and the wrongful sale of 15.80 grams of marijuana on 9 March 1978.  He plead guilty to all charges and was sentenced to confinement at hard labor for 30 days, reduction to the pay grade of E-1, and a forfeiture of pay.  The Army Retraining Brigade at Fort Riley, Kansas was designated as his place of confinement.

The facts and circumstances surrounding the applicant’s administrative discharge are not present in the available records.  However, his records do contain a duly constituted report of separation (DD Form 214) signed by the applicant which indicates that he was discharged under other than honorable conditions on 16 November 1978 under the provisions of Army Regulation     635-200, chapter 14, for frequent involvement in incidents of a discreditable nature with civil or military authorities.  He had served 2 years, 1 month, and 9 days of total active service and had 24 days of lost time due to imprisonment.

The applicant’s medical records are not present in the available records; however, his records do contain a request to waive a physical examination initiated by the applicant.  It reflects that he was counseled by his commander and by legal counsel and acknowledged that he was aware that he had a right to a physical examination and that in requesting a waiver he might be waiving his medical benefits.

There is no indication in the available records to show that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established the policy and prescribes procedures for separating members for various types of misconduct that included frequent involvement in incidents of a discreditable nature with civil or military authorities.  It provided that action would be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions was normally considered appropriate.

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.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons therefor were appropriate considering all of the available facts of the case.

3.  The applicant was sent to the Army Retraining Brigade, a unit that was designed to rehabilitate soldiers during a sentence of confinement with the hopes of returning soldiers back to duty as productive members and afford them an opportunity to serve out the remainder of their service honorably.  It appears that the applicant chose not take advantage of the opportunity afforded to him at the time.

4.  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.

5.  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

__rvo ___  ____jpi__  __clg____  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999026615	
SUFFIX		
RECON		
DATE BOARDED	2000/01/19	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1978/11/16	
DISCHARGE AUTHORITY	AR 635-200 	
DISCHARGE REASON	626/MISCONDUCT	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  626 	144.6000/A60.00	
2.		
3.		
4.		
5.		
6.