MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           12 September 2000                   
	DOCKET NUMBER:   AR2000041321

	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	
	Mrs. Judy Blanchard-Miller		Analyst	

  The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. Fred Eichorn		Member	
	Ms. Carol Jo Suiter		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 general discharge. 

APPLICANT STATES:  In effect, that the discharge that he received was given because of felony drug charges that he was facing in civilian court.  The charges were dismissed 2 months after he was discharged.  The applicant submits documents in support of his application. 

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

The applicant voluntarily enlisted in the Regular Army on 15 January 1968, for
3 years.  While in basic training the applicant refused to train and requested to be classified as a conscientious objector.  The applicant’s request was denied.  The applicant was recycled to another company because of the training he had missed while awaiting the decision on his application.  The applicant again refused to train.  However, he later indicated that he was willing to serve in a non-combatant duty.  His request was granted and after completing the required training he was awarded military occupational specialty 91A10 (Medical Corpsman).  The highest grade he achieved was pay grade E-3.

On 10 April 1968, the applicant accepted nonjudicial punishment (NJP), under Article 15, Uniform Code of Military Justice (UCMJ), for failure to go at the prescribed time to his appointed place of duty.  His imposed punishment was a forfeiture of $44.00 pay and 14 days restriction. 

On 22 May 1968, the applicant was convicted by a special court-martial (SPCM), of willfully disobeying a lawful order.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of $63.00 pay per month for 6 months.

Between February and May 1969, the applicant accepted three NJP’s, under Article 15, UCMJ, for failure to go at the prescribed time to his appointed place of duty, for being absent without leave (AWOL) from 8 to 14 March 1969 and for disobeying a lawful order.  His punishment included forfeitures; restrictions, extra duties, an oral reprimand and a reduction to pay grade E-2.

On 26 August 1969, the applicant was convicted by a SPCM of assault and for disobeying a lawful order.  He was sentenced to confinement at hard labor for 
3 months, a forfeiture of $82 pay per month for 3 months and a reduction to pay grade E-1.

On 19 February 1970, the applicant accepted an NJP, under Article 15, UCMJ, for being AWOL from 29 to 30 January 1970 and for dereliction of duty.  His imposed punishment was a forfeiture of $31.00 pay (suspended for 2 months), 14 days restriction and extra duty.

On 29 April 1970, the applicant was arrested by civil authorities for the sale of Lysergic Acid Diethalymide (LSD), and hallucinogenic drugs.  The charges were dismissed because the primary witness for the state could not be found.    

On 4 September 1970, the applicant was found mentally and physically fit for retention.  He had no disqualifying mental or physical defects sufficient to warrant disposition through medical channels.  He was considered mentally competent to participate in board proceedings.

On 18 September 1970, the commander notified the applicant that he was being recommended for discharge under the provisions of Army Regulation 635-212, for unfitness.  The commander’s recommendation was based on the applicant’s frequent incidents of a discreditable nature with civil and military authorities.  The applicant was advised by legal counsel of the basis for the contemplated separation action and the rights available to him, he waived consideration, personal appearance, and representation before a board of officers     

On 9 October 1970, the applicant accepted an NJP, under Article 15, UCMJ, for failure to repair.  His imposed punishment was a forfeiture of $30.00 pay (suspended for 2 months), 14 days restriction and extra duty.

On 12 October 1970, the appropriate authority approved the recommendation, waived further rehabilitation requirements and directed the issuance of a discharge under the provisions of Army Regulation 635-212, for unfitness with an Undesirable Discharge Certificate. 

On 22 October 1970, the applicant was discharged in pay grade E-1, under the provisions of Army Regulation 635-212, for unfitness, with a discharge UOTHC.  He had completed 2 years, 9 months and 8 days of creditable active service.  

Army Regulation 635-212, in effect at the time set forth the basic authority for the separation of enlisted personnel.  Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

On 6 January 1978, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge. 

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 this requirement.

2.  The contentions of the applicant have been noted by the Board.  However, they are not supported by either evidence submitted with the application or the evidence of record.  The drug charges that the applicant was facing were not the only reason he received the discharge UOTHC.  The applicant’s record of indiscipline, which included six Article 15’s, two special courts-martial alone are sufficient basis for receiving the type of discharge that he received.  

3.  The discharge process was in accordance with applicable law and regulations and the character of the discharge is commensurate with the applicant's overall record of military service.

4.  While the Board has taken cognizance of the applicant's good post-service conduct; this factor does not warrant the relief requested.

5.  Therefore the type of discharge directed and the reasons were appropriate considering all the facts of the case.

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:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__cmf___  __fe____  __cjs___  DENY APPLICATION

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

INDEX

CASE ID	AR2000041321	
SUFFIX		
RECON		
DATE BOARDED	20000912	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	19701022	
DISCHARGE AUTHORITY	AR635-212 .  .  .  .  .  	
DISCHARGE REASON	A51.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.5000	
2.		
3.		
4.		
5.		
6.