PROCEEDINGS

	IN THE CASE OF

	BOARD DATE:            25 January 2001                  
	DOCKET NUMBER:   AR2000041958

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar 		Chairperson	
	Mr. Lester Echols		Member	
	Ms. Karen A. Heinz		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests in effect, that his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge (HD).

3.  The applicant states in effect, that he honorably completed his first 3 years of military service.  He reenlisted and he completed an additional year of service.  He requests that the Board modify his discharge so that he may be entitled to veterans benefits.  Further, he states that he had a problem and that he did not know how to ask for help.  He believes that he was penalized too harshly for this mistake.  He submits a statement and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the Board to consider.

4.  On 26 September 1978, he enlisted in the Regular Army (RA) for 3 years.  His military occupational specialty (MOS) was 72E (Telecommunications Center Operator).  He was advanced to pay grade E-4 on 5 May 1980.  He was honorably discharged on 13 May 1981 for the purpose of reenlistment.  He had completed 2 years, 7 months and 18 days of active service.  He was awarded the Good Conduct Medal, the Army Service Ribbon and the Overseas Service Ribbon.  He had no recorded indisciplines or lost time.  The available evidence shows that no DD Form 214 was issued at the end of his first period of honorable service and that the DD Form 214 that he later received does not show this was an honorable period of service.

5.  On 14 May 1981, he reenlisted in the RA for 3 years in pay grade E-4 which was the highest grade that he achieved.  His reenlistment options were for duty at Fort Belvoir, Virginia and for training in MOS 72G (Automatic Data Telecommunications Center Operator).  On 30 October 1981, he was assigned to Fort Belvoir.  On an unknown date in 1981 he was awarded MOS 72G.  

6.  Between 8 December 1981-18 June 1982, the applicant received 
12 counseling statements for various offenses to include failure to report to his appointed place of duty at the prescribed time; for missing formation; and for leaving his place of duty without permission.

7.  On 12 February 1982, civilian police apprehended the applicant after he was observed sitting in a privately owned vehicle snorting a powdered substance (heroin).  

8.  On 23 March 1982, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for being AWOL from his unit from 22-26 February 1982.  His punishment included reduction from pay grade E-4 to pay grade E-3 (suspended) and 45 days extra duty.  On 23 April 1982, the suspended portion of his sentence was vacated.

9.  On 2 April 1982, he was convicted of possession of heroin in the District of Columbia Superior Court.  He was sentenced to 1 year probation.
10.  On 5 August 1982, NJP was imposed against him for failure to go to his appointed place of duty at the time prescribed on 22 July 1982.  His punishment included reduction from pay grade E-3 to pay grade E-2, forfeiture of $144.000 pay and 14 days extra duty.  

11.  He was also AWOL from his unit from 13-18 August 1982 and from
4-14 September 1982.  The available records do not indicate that he ever received disciplinary action for these periods of AWOL.

12.  An undated letter shows that the commander notified the applicant that he was being recommended for discharge under the provisions of chapter 14, Army Regulation 635-200, for misconduct (civil conviction).  In compliance with the provisions of chapter 14, he was further advised that he could receive a UOTHC discharge.  He was advised of his rights, to include the right to legal counsel and to consideration of his case before a board of officers.  He was also advised that he could submit a statement in his own behalf.

13.  On 15 July 1982, he requested consideration of his case by a board of officers.  He declined to submit a statement in his own behalf.  He also declined a separation medical examination.  He stated that he did not intend to appeal his civil conviction for possession of heroin.

14.  On 31 August 1982, the applicant appeared before a board of officers with counsel.  The board proceedings revealed that the applicant’s duty performance had been poor prior to his civil conviction and that it continued to be poor after his civil conviction; he displayed a lack of interest in wanting to remain in the Army; and that he continued to report to formation late and counseling appeared to have no effect on him.

15.  The board of officers determined that he was undesirable for further retention in the service because of his misconduct and a civil conviction.  Rehabilitation was not considered possible within a military unit environment.  The board recommended that he be separated with a UOTHC discharge.  

16.  Both the battalion and brigade commanders recommended approval.  
On 8 September 1982, the separation authority approved separation with a UOTHC discharge and directed that he be reduced to pay grade E-1 prior to execution of the discharge. 

17.  On 15 September 1982, the applicant was separated with a UOTHC discharge, under the provisions of chapter 14, Army Regulation 635-200, for misconduct-conviction by civil court.  On the enlistment under review, he had completed 1 year, 3 months and 11 days and he had 21 days lost time due to 

being AWOL.  The DD Form 214 that he was issued at this time does not show that he completed an honorable period of service from 26 September 
1978-13 May 1981.

18.  Army Regulation 635-200, in effect at the time set forth the basic authority for the separation of enlisted personnel for misconduct.  Chapter 14 provided, in pertinent part, that an individual would be considered for discharge when convicted by civil authorities of an offense which involved moral turpitude.  A UOTHC discharge was normally considered appropriate, but a GD or an HD could have also been awarded.

19.  The Department of Veterans Affairs (DVA) determines qualifications for benefits administered by that agency.  The DVA generally holds that an individual who accepts a discharge prior to completion of his complete term of obligated service may not be eligible for benefits unless or until the DVA or the Service Department determines that the early discharge amounted to a complete and unconditional separation from the military.       

CONCLUSIONS:

1.  The applicant's UOTHC discharge issued on 15 September 1982, for misconduct-conviction by civil court, was administratively correct and in conformance with the applicable regulations then in effect.

2.  The Board determined that both the characterization of service and the narrative reason for separation were appropriate considering all the facts of the case.

3.  The overall quality of the applicant’s last period of service does not warrant an upgrade of the discharge.  However his prior period of service from 
26 September 1978-13 May 1981 should be considered for a complete and unconditional separation.  To do otherwise would work as an injustice by attaching a stigma to his total period of military service and he would be denied certain veterans benefits for his first period of enlistment when the majority of his service was honorable.

4.  Since no DD Form 214 was issued at the completion of his first period of service, and the DD Form that was issued to him on 15 September 1982 does not show that he honorably completed his first period of service it would be appropriate at this time to issue him a DD Form 215 (Correction to DD Form 
214) showing that there was a period of honorable service with a complete and unconditional separation at the end of this period of service from 26 September 1978-13 May 1981, a period of service which equals 2 years, 7 months and
18 days.

5.  In view of the foregoing, the applicant’s records should be corrected, but only as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by issuing the individual concerned a DD Form 215, which shows that he honorably completed his first period of service from 19780926-19810513; and he was discharged for the purpose of reenlistment on 14 May 1981. 

2.  That so much of the application as is in excess of the foregoing be denied 

BOARD VOTE:  

__jh____  __le_____  __kah___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____June Hajjar____
		        CHAIRPERSON

INDEX

CASE ID	AR2000041958	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010125	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	19820915	
DISCHARGE AUTHORITY	AR 635-200, Chapter 14	
DISCHARGE REASON	A61.00	
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	144.6100	
2.		
3.		
4.		
5.		
6.