MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:  13 June 2000
	DOCKET NUMBER:   AR2000036344

	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. Carl W. S. Chun		Director	
	Ms. Stephanie Thompkins		Analyst	

  The following members, a quorum, were present:

	Ms. Elizabeth Buchanon		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. John H. Kern		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 his request for upgrade of his undesirable discharge to honorable.  

APPLICANT STATES:  That he was immature when he went into the service and he only enlisted in order to help his mother.  He adds that he became addicted to drugs while in Korea.  He sought drug treatment, is now free of drugs, and is responsible for running drug and alcohol meetings.  He submits a detailed letter in support of his request.

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 28 August 1991 (COPY ATTACHED).

He enlisted in the Army as a private (E-1) on 1 April 1971.  He was advanced to the rank of private (E-2) on 1 August 1971.

On 27 October 1971, he received nonjudicial punishment (NJP) under Article 15, Uniform Code for Military Justice (UCMJ), for disobeying a lawful order.  His punishment included forfeiture and restriction.

On 9 November 1971, he received NJP for disobeying a lawful order.  His punishment included forfeiture of pay.

On 22 December 1971, he was placed in pretrial confinement due to several incidents of misconduct.  Court-martial charges were preferred against him and, on 12 February 1972, he was convicted by a special court-martial for assaulting another soldier by cutting him with a knife, being disorderly in the enlisted club, and failure to go to his place of duty.  His approved sentence included reduction to pay grade E-1, forfeiture and confinement at hard labor for 6 months.

He was advanced to E-2 on 10 May 1972 and private first class (E-3) on 23 August 1972.

On 22 August 1972, he received nonjudicial punishment under Article 15, UCMJ for failure to go to a unit formation.

On 18 January 1973, he was convicted by a special court-martial for threatening to kill another soldier on or about 12 December 1972.  His punishment included reduction to pay grade E-2, confinement at hard labor for 45 days and forfeiture.  However, the portion of his sentence in excess of reduction to pay grade E-2 and forfeiture was suspended for 6 months.

On 15 May 1973, his commander, contemplating administrative separation action, requested that a rehabilitative transfer of the applicant be waived, stating that the applicant would be a burden to any unit to which assigned.  He further stated that the applicant had repeated positive readings on urinalysis tests, demonstrating his total disregard for the drug program and for military authority.

On 30 May 1973, the applicant was notified of his commander’s intent to recommend him for elimination from the military.  After consulting with legal counsel, the applicant waived his rights to a hearing before a board of officers and elected not to submit a statement on his own behalf. 

On 12 June 1973, the appropriate separation authority approved the applicant’s commander’s request for waiver of a rehabilitative transfer and directed that the applicant be discharged and issued an Undesirable Discharge certificate.

The applicant was separated on 18 June 1973 for unfitness under the provisions of Army Regulation 635-200, paragraph 13-5a(1).  His total net service was 1 year, 8 months and 4 days and 196 days of lost time.

On 30 June 1976, the Army Discharge Review Board (ADRB) denied the applicant’s request for upgrade of his discharge.

On 28 August 1991, this Board denied his request for upgrade of his discharge and stated that his case did not fall within the purview of the “Laird Memorandum.”

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter for unfitness when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier.   An undesirable discharge was normally considered appropriate.

Under the Department of Defense Memoranda of 7 July and 13 August 1971, the latter sometimes known as the Laird Memorandum, administrative discharges issued under other than honorable conditions solely on the basis of personal use of drugs, or possession of drugs for the purpose of such use, will be reviewed for recharacterization.  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, it is concluded:

1.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge.  He has not shown error, injustice, or inequity for the relief he now requests.  He was properly discharged.

2.  The overall merits of the case, including the latest submission and argument are insufficient as a basis for the Board to reverse its previous decision.

3.  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

__EB___  __BE____  __JK____  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000036344	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000613	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.