MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           18 January 2001                   
	DOCKET NUMBER:   AR2000050093

	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. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. John T. Meixell		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 be upgraded.

APPLICANT STATES:  That his initial psychiatric evaluation was on 1 November 1995.  His discharge was not pending at this time.  He should have been eligible for the substance abuse program.  He could not stop using drugs and drinking without significant help.  

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

He initially enlisted in the Regular Army on 12 November 1992.  He was discharged under the provisions of Army Regulation 635-200, chapter 11, entry level status, on 16 December 1992.  He enlisted in the Army National Guard on 19 June 1995.  He was ordered to initial active duty for training effective            14 August 1995.  

On 27 November 1995, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for being in an unauthorized area during duty hours.

On 13 December 1995, the applicant informed his command that he had used illicit drugs and wanted substance abuse treatment.  He was referred to the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) as a self-referral.

On 4 January 1996, the applicant failed to report at the 4:30 a.m. formation.  On or about 10:00 p.m., his mother informed the unit that the applicant was downtown under the influence of narcotics and had no way of returning to the unit.  He was command referred to the ADAPCP.  He accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for failing to go to his place of duty. 

On 8 January 1996, the Clinical Director, ADAPCP noted that the applicant was screened and evaluated on 13 December 1995 for excessive alcohol and cocaine use.  The applicant stated that he would agree to remain abstinent of all chemicals and start attending Alcoholics Anonymous meetings.  On 5 January 1996, the applicant was referred back to ADAPCP following another incident of binge drinking and cocaine use.  The Clinical Director found him resistant towards treatment and exhibited no motivation to change and or examine his use of alcohol and cocaine.  The applicant would be monitored on a weekly basis until he departed to return to his National Guard unit sometime in the very near future.

On 17 January 1996, the applicant failed to report at the 7:30 a.m. formation.  He was apprehended by the San Antonio Police on 18 January 1996 and later turned over to the military police for use of illicit substance abuse.  
On 1 February 1996, court-martial charges were preferred against the applicant charging him with wrongful use of cocaine, absenting himself from his unit and breaking restriction.

On 1 February 1996, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200, chapter 10 for the good of the service in lieu of trial by court-martial.  The applicant was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and Veterans Administration benefits.  He submitted no statement in his own behalf.

On 2 February 1996, the appropriate authority approved his request, directed he receive a discharge under other than honorable conditions (UOTHC) and directed his return to the appropriate Texas National Guard authorities for discharge from the Army National Guard.

On 8 February 1996, the applicant was released from active duty for training and discharged from the Reserve of the Army, in pay grade E-1, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service with a discharge UOTHC.  He had completed 5 months and 24 days of creditable active service and had 1 day of lost time.

On 8 February 1996, the applicant was discharged from the Army National Guard with a discharge UOTHC.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  A discharge under other than honorable conditions is normally considered appropriate.  

On 1 December 2000, the Army Discharge Review Board denied the applicant’s request for an upgraded 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 applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

3.  The Board notes that the applicant was eligible for and was offered substance abuse treatment twice, at the time of his self-referral and at the time of his command referral.  The applicant failed to respond to these efforts by failing to abstain from drug and alcohol use.  By continuing to abuse illegal drugs, the applicant left himself open to court-martial charges that could have resulted in a punitive discharge.  Considering the chances for help he was offered but failed to respond to and the offenses for which he was charged, the type of discharge given was appropriate.

4.  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

__jns___  __mhm___  _jtm____  DENY APPLICATION

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

INDEX

CASE ID	AR2000050093	
SUFFIX		
RECON		
DATE BOARDED	20010118	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19960208	
DISCHARGE AUTHORITY	AR 635-200, ch 10 	
DISCHARGE REASON	A70.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.