MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           15 March 2000
	DOCKET NUMBER:   AR1999028685

	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. Antoinette Farley		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Margaret K. Patterson		Member	
	Mr. Van B. Cunningham		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 a fully honorable discharge.

APPLICANT STATES:  In effect, he believes that his use of marijuana was an isolated incident.  He feels that after his special court-martial (SPCM), he tried to perform well, but the treatment he received after the SPCM changed.  He further states that he is currently homeless, is seeking assistance from the Department of Veterans Affairs (DVA) and has had no legal difficulties since his separation.  He provides a copy of his discharge certificate, dated 26 August 1981.

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

He enlisted in the Regular Army for 3 years on 3 January 1979.  He completed his basic training at Fort Leonard Wood, Missouri, on 5 March 1979.  He then completed his advanced individual training in military occupational specialty and was awarded (MOS) 76J00 (Medical Supply Specialist) at Fort Sam Houston, Texas.  On 6 May 1979, he was assigned to duty in his MOS in Germany.  On 
3 January 1981, he was advanced to pay grade E-3.  

On 18 April 1980, he received his first nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for willfully disobeying a lawful order from a noncommissioned officer (NCO) on 10 April 1980; for being disrespectful in language to a superior NCO on 10 April 1980; and for breaking restriction on about 15 April 1980.  His punishments included reduction to pay grade E-2, which was suspended for 60 days and 14 days extra duty. 

On 5 June 1980, the applicant was convicted by a special court-martial of wrongfully having in his possession a residue of a controlled substance, to wit: marijuana on 20 March 1980.  He was sentenced to a reduction from pay grade 
E-2 to pay grade E-1, hard labor without confinement for 30 days and forfeiture of $250.00 pay per month for 2 months.  The applicant appealed the sentence and his civilian counsel submitted a DA Form 3499 (Application for Relief from Court-Martial Findings and/or Sentence under the Provisions of Title 10, United States Code, Section 869).  There is no recorded final action on this appeal.  Further, there is also no indication that the court-martial finding and/or sentence were modified.

He received his second NJP on 18 July 1980 for failing to go at the time prescribed to his appointed place of duty and for having received a lawful order from an NCO, a military policeman in the performance of his duties, to produce his identification card, willfully disobeyed that order on 1 July 1980.  His punishment included 30 days in a correctional custody facility.  The applicant submitted an appeal, which was denied.  He was further ordered to serve 
30 days in a Category II Correctional Custody status from 21 July 80 to 
19 August 1980.
He received his third NJP on 3 October 1980, for leaving his appointed place of duty without authority to wit: Charge of Quarters on the 3rd floor of building 1806 and willfully disobeyed a lawful order by a NCO to wake up, get out of the jeep and walk to the motor pool on 30 September 1980.  His punishment included forfeiture of $100.00 pay and 14 days extra duty.

On 9 December 1980, the applicant’s unit commander initiated action to separate him under the provisions of Chapter 14, AR 635-200 for misconduct frequent incidents of a discreditable nature with civil or military authorities.  The applicant was advised of his rights, consulted with legal counsel, and was informed of the impact of a less than fully honorable discharge.  He elected not to submit a statement in his own behalf.  

He received his fourth NJP on 10 December 1980, for failing to go to his appointed placed of duty to wit: morning formation and PT formation on 
3 November 1980.  His punishment included forfeiture of $116.00 pay, extra duty for 14 days and restriction to his unit and his place of duty for 14 days.

On 18 December 1980, the applicant’s commander initiated a request to bar him from reenlistment.  He cited as the bases for his recommendation, the applicant’s conviction by a special court-martial, four NJP’s, plus a fifth NJP which was still pending, and two letters of indebtedness.  For reasons unknown, the bar was not approved until 21 April 1981.

On 21 January 1981, he received his last NJP for failing to go to his appointed placed of duty to wit: morning formation on 13 January 1981.  His punishments included forfeiture of $100.00 pay and 14 days extra duty.

On 27July 1981, the separation authority approved separation with a UOTHC discharge.  On 26 August 1981, the applicant was separated with a UOTHC, under the provisions of chapter 14, AR 635-200, for misconduct.  He had 2 years, 7 months and 25 days of creditable service and no lost time.  

The applicant petitioned the Army Discharge Review Board (ADRB) on 25 July 1995, seeking a discharge upgrade.  The ADRB, after considering his case on 
27 February 1997, denied his request.

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 included minor disciplinary infarctions, a pattern of misconduct, commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and exertion or absences without leave.  At the time of the separation action another category was misconduct-frequent incidents of discreditable nature with civil or military 
authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  Army policy states that a UOTHC discharge under other than honorable conditions is normally considered appropriate but a general or honorable condition discharge may be awarded.

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 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 applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of any procedural errors that would jeopardize his rights.  

3.  The type of discharge directed and the reason therefore were appropriate considering all the facts of the case.

4.  While the Board has taken cognizance of the applicant's homeless status
and his good post-service conduct, neither of these factors, either individually or in sum,  warrant the relief requested.

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__  __mkp___  __vbc___  DENY APPLICATION

				Karl F. Schneider
				Director, Army Review Boards Agency

INDEX

CASE ID	AR1999028685	
SUFFIX		
RECON		
DATE BOARDED	20000315	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19810826	
DISCHARGE AUTHORITY	AR .635-200 CH14 	
DISCHARGE REASON	A67.50	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	144.00	
2.	A92.17	
3.	A92.23	
4.	A92.35	
5.	A01.00	
6.	A67.10