MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            28 August 2001
	DOCKET NUMBER:   AR2001052333

	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. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Richard T. Dunbar		Member	
	Mr. Donald P. Hupman, Jr.		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 under other than honorable conditions (UOTHC) discharge be upgraded to a fully honorable discharge. 

APPLICANT STATES:  The applicant makes no contentions.

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

That on 30 December 1976, he enlisted in the Delayed Entry Program (DEP).  On 10 January 1977, he was separated from the DEP; he enlisted in the Regular Army for a period of 3 years on 11 January 1977 in military occupational specialty (MOS) 94B (Food Service Specialist) and for the special unit enlistment option (5th Infantry Division, Fort Polk, Louisiana).  He was assigned to Fort Leonard Wood, Missouri for basic training and advanced individual training.

On 8 March 1977, nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military (UCMJ) was imposed against the applicant for being absent from his unit and for having in his possession some amount of marihuana on 4 March 1977.  His punishment included forfeiture of pay.

The applicant completed basic training and advanced individual training and was awarded MOS 94B.  On 13 May 1977, he was assigned to Fort Polk for permanent duty.  

On 3 August 1977, NJP was imposed against the applicant for leaving his appointed place of duty and for wrongfully having in his possession some amount of marihuana on 27 July 1977.  On 1 February 1978, NJP was imposed against him for stealing (shoplifting) a lock valued at $2.25, the property of the Fort Polk Exchange.  His punishments included reduction from pay grade E-3 to pay grade E-1, forfeiture of pay, extra duty and restriction.

On 23 February 1978, NJP was imposed against the applicant for failure to go to his appointed place of duty at the time prescribed on 22 February 1978.  His punishment included forfeiture of pay, extra duty and restriction.  On 1 May 1978, he was again promoted to pay grade E-3.

On 25 April 1978, while driving his privately-owned vehicle (POV), the applicant hit a stopped vehicle at an intersection.  During the investigation, military police detected an odor of alcohol and requested that the applicant participate in a field sobriety test.  He failed the field sobriety test and was administered a test of his breath/blood to determine his blood alcohol content.  Test results revealed his blood-alcohol content level to be .11% (with .10% considered legally drunk).  He was charged with driving too closely while under the influence of alcohol (driving while under the influence, or DWI).

On 5 May 1978, the applicant acknowledged in writing that he had been notified that his post driving privileges were suspended for a period of 12 months.  He did not appeal the action.

On 21 July and on 19 September 1978, NJP was imposed against the applicant for driving his POV on post while his post driving privileges were suspended (the offenses occurred on 7 July and on 11 September 1978).  He also had in his possession some amount of marijuana when he was caught driving on post on 7 July 1978.  His punishments included restriction, 21 days of correctional custody at the Correctional Custody Facility at Fort Polk, and reduction from pay grade E-3 to pay grade E-2.

On 19 November 1978, the applicant was stopped and charged with driving with expired vehicle license plates.  He appeared in Magistrate's Court and was fined $25.00.  

On 24 November 1978, the applicant was involved in a traffic accident while driving on Fort Polk.  He refused to take a test to measure his blood-alcohol content level.  He was charged with DWI, driving with an expired vehicle driver's license and for driving with expired vehicle license plates.  It was noted that he was also driving while his post driving privileges were suspended. 

On 28 November 1978, the applicant acknowledged in writing that he had been notified that, due to his second DWI offense, his post driving privileges had been revoked for a period of 36 months.  He did not appeal this action.

On 14 December 1978, a bar to reenlistment was initiated against the applicant. He was advised that the basis for the bar was the above offenses.  He did not appeal the bar. 

On an unknown date, his commander officially notified the applicant that he was being recommended for discharge under the provisions of chapter 14, Army Regulation 635-200 for misconduct, due to frequent incidents of a discreditable nature with civil or military authorities.  The applicant was advised that the basis for this recommendation was that he had repeatedly demonstrated a total disregard for military authority.  He disregarded military orders, ignored counseling, had been punished under the UCMJ on six separate occasions, and he had resisted efforts at rehabilitation.  Further, he was advised that he was considered to be a serious threat to the good order and discipline of his unit.  He was also advised of the rights available to him. 

On 18 December 1978, the applicant acknowledged notification, consulted with legal counsel, and requested legal representation and a personal appearance before a board of officers.  He did not submit a statement.

On 19 January and again on 19 April 1979, NJP was imposed against the applicant for failure to go to his appointed place of duty at the time prescribed on 15 January and 11 April 1979.  His punishments included forfeiture of pay, extra duty and restriction.

On 20 April 1979, the applicant was notified that a board of officers would convene on 2 May 1979 to determine whether he should be discharged due to misconduct under the provisions of chapter 14, Army Regulation 635-200.

On 2 May 1979, the applicant appeared before the board of officers with counsel. During the board proceedings, the following were received into evidence:  the NJP actions, the military police reports, the suspension and revocation of post driving privileges, the commander's reports of disciplinary action, and some counseling statements that are no longer a matter of record.  After taking into consideration all of the available evidence, the board of officers concluded that the applicant was undesirable for further retention in the military due to frequent incidents of a discreditable nature with civil and military authorities.  Rehabilitation was not deemed possible.  The board recommended that he be separated with a UOTHC discharge. 

On 25 May 1979, the final approval authority directed that the applicant be separated for misconduct with a UOTHC discharge.  

On 18 June 1979, the applicant was separated with a UOTHC under the provisions of chapter 14, Army Regulation 635-200, by reason of misconduct.  He had completed 2 years, 5 months and 8 days of creditable military service and he had no recorded lost time. 

On 17 January 2001, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absences without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  Army policy states that a UOTHC discharge is normally considered appropriate, but a GD under honorable conditions or an honorable discharge may be granted.

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 administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

3.  The type of discharge was appropriate considering the facts of the case.

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___  __RTD__  __DPH__  DENY APPLICATION

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

INDEX

CASE ID	AR2001052333	
SUFFIX		
RECON	 	
DATE BOARDED	20010828	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	19790618	
DISCHARGE AUTHORITY	AR635-200, CH 14 	
DISCHARGE REASON	A67.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.6700	
2.		
3.		
4.		
5.		
6.