MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:                             7 September 2000
	DOCKET NUMBER:                     AR2000040687

	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. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Ms. Celia L. Adolphi		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Thomas B. Redfern, III		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 honorable.

APPLICANT STATES:  In effect, that his Article 15 and court-martial were an injustice to him.  He contends that he was caught holding the drugs when his commander walked in and he accepted the blame for his actions.

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

The applicant entered active duty on 16 June 1972 as a food service specialist.

Between December 1972 and April 1973, the applicant accepted three 
nonjudicial punishments (NJP) for two instances of failure to be at his appointed place of duty, for being disrespectful towards a superior commissioned officer and for possession of marijuana.  His punishments consisted of a forfeiture of pay, a reduction to pay grade E-1 and 14 days restriction and extra duty.

The applicant’s personnel records are void of any court-martial action.

On 1 May 1973, the applicant was notified by his commander that he was being recommended for discharge under the provisions of AR 635-200, chapter 13, for unfitness.  He based his recommendation on the applicant’s repeated incidents of a total disregard for military authority and the use of marijuana.

After consulting with counsel, the applicant requested a personal appearance and consideration of his case by a board of officers.  He also requested representation by counsel and elected not to submit statements in his own behalf.  He acknowledged that he might encounter substantial prejudice in civilian life and might be ineligible for many or all benefits administered by the Veterans Administration if a discharge under other than honorable conditions were issued.

On 10 July 1973 he was ordered to appear before a board of officers on 
16 July 1973 to determine if he should be discharged from the service due to unfitness.  The applicant appeared before the board and was represented by counsel and elected to testify in his own behalf.  

On that same day, the board president terminated the proceeding due to procedural irregularities.

On 22 August 1973 the board reconvened and determined that the applicant was unfit for retention in the service due to frequent incidents of a discreditable nature and drug abuse.  The board recommended that he be discharged from the service because of unfitness and issued an Undesirable Discharge Certificate.  The appropriate authority approved the findings and recommendations of the board of officers on 12 October 1973.

The applicant was discharged on 23 October 1973 under the provisions of Army Regulation 635-200, chapter 13, for unfitness based on his frequent incidents of a discreditable nature with military authorities and habitual shirking.  He had a total of 1 year, 4 months and 8 days of creditable serve.

The applicant applied to the ADRB for an upgrade of his discharge on 15 March 1979.  The ADRB carefully reviewed the applicant’ s record and traced the steps leading to his separation and determined that the discharge was proper but not equitable.  The ADRB also examined the steps taken by his chain of command, determining that all procedures were proper and in accordance with regulations at the time of discharge and at the time of review.  The ADRB noted the applicant’s service of 1 year, 4 months, during which he received three Article 15s, but had no lost time.  The ADRB reviewed the applicant’s record which revealed the findings of a board of officers.  The panel was persuaded that the characterization of service at the time of discharge was too harsh and voted unanimously to grant partial relief in the form of a General Discharge.

The Department of the Army letter, dated 24 February 1981, informed the applicant that his discharge has been changed to Under Honorable Conditions (General) and that a new separation document had been prepared and was enclosed for his signature.

Army Regulation 635-200 sets forth the policy and prescribes the procedure for administrative separation of enlisted personnel.  Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability.  At that time, paragraph 
13-5a(1) provided for the separation of individuals for unfitness (frequents incidents of a discreditable nature with civil or military authorities).  When separation for unfitness was warranted an undesirable discharge was issued by the separation authority.

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.  The Board noted the applicant’s contentions that his Article 15 and court-martial were an injustice to him; however, there is no evidence in the available records, and the applicant has provided no evidence, to support his contentions.

2.  The applicant’s separation under the provisions of Army Regulation 635-200, chapter 13-5, was administratively correct and in conformance with applicable regulations. 

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

4.  The Board noted the decision by the ADRB to upgrade the characterization of service to under honorable conditions (General).  After review of the entire case, this Board finds no evidence that this characterization of service was improper or was inequitable.  Therefore, the applicant is not entitled to a change in his character of service to fully honorable.

5.  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 this requirement.  

6.  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:

CLA_____  WTM___  TBR_____  GRANT

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

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

INDEX

CASE ID	AR2000040687	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	200008xx	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19731023	
DISCHARGE AUTHORITY	AR2000040687	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189		
2.		
3.		
4.		
5.		
6.