MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  27 November 2001
	DOCKET NUMBER:  AR2001059628

	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	
	Mr. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. John T. Meixell		Member	
	Mr. Lester Echols		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 undesirable discharge be upgraded.

APPLICANT STATES:  That due to his youth and immaturity he was not making responsible decisions and was discharged due to drugs and shirking his duties.  He is more responsible now.  The discharge was too harsh for the crime he committed.  He has paid his debt to society.  He submits three letters of character reference in support of his application.

COUNSEL CONTENDS:  That the applicant’s overall service is more deserving of a general discharge.  He served in Vietnam and the availability of drugs precipitated his misconduct.  He was young with a limited education that diminished his ability to serve.  Under current standards the applicant would have had the service of a drug rehabilitation program that may have allowed him to return to duty drug free.

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

He enlisted and entered active duty on 28 November 1969.  He was trained as a cook but spent 4 months as a tank loader before his assignment to Vietnam.  He was promoted to the pay grade of E-4 effective 19 September 1970.

From 12 January to 12 April 1970, he was punished under Article 15, of the Uniform Code of Military Justice on five occasions.  The offenses included absence from his place of duty on five occasions, possession of four pounds of marijuana, and wrongful appropriation of a .45 caliber pistol.  His punishment included restriction and extra duty, forfeitures of pay, and reduction to the pay grade of E-1.

On 22 May 1971, charges were preferred on the applicant for possession of opium and two specifications of absence from his place of duty.  There is no evidence of record to show the final adjudication of these charges.

A 31 May 1971 psychiatric evaluation determined that the applicant had an immature and inadequate personality and suffered from drug abuse.  He was mentally responsible, able to distinguish right from wrong and adhere to the right.  He was fully alert and oriented with appropriate affect.  There was no evidence of a thought disorder or evidence of a psychosis.

On 1 June 1971, the unit commander notified the applicant of his intention to recommend separation for unfitness based on his drug abuse.  After consultation with counsel, the applicant waived his right to submit statements in his own behalf and requested consideration of his case by a board of officers with representation by counsel.

On 26 August 1971, a board of officers convened to consider the applicant’s case. The board noted his lengthy history of punishments and attempts at counseling and rehabilitation by his command.  The board found that the applicant was undesirable for further retention in the Army because of drug abuse and his established pattern of shirking.  The board recommended separation for unfitness with an Undesirable Discharge Certificate.

Effective 29 September 1971, the applicant was separated in the pay grade of E-1 under the authority of Army Regulation 635-212 for unfitness.  He had 1 year, 10 months, and 2 days creditable service.

The applicant submits three character reference letters that discuss his honest and hard working nature and assistance to the poor and needy.

Army Regulation 635-212, in effect at the time, provided the policy for the separation of enlisted personnel for unfitness.  An individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities, drug abuse, or an established pattern of shirking.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

On 3 December 1981, the Army Discharge Review Board (ADRB), in a unanimous decision, voted to deny the applicant an upgrade of his discharge.  The ADRB determined that his disciplinary record that began 2 months after his arrival in Vietnam, the recorded attempts of rehabilitation, and his poor conduct and performance in a combat zone did not warrant upgrading 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.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge and the reasons therefore were commensurate with his overall record.

2.  The applicant was afforded numerous opportunities to improve his performance and conduct but continued to demonstrate a lack of concern for his situation.

3.  His claim of good post service conduct and leading a more responsible life is commendable, but it does not serve as an overriding consideration to excuse his record of indiscipline and persistent drug abuse and the granting of a discharge upgrade.

4.  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.

5.  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

__ao___  ___jm___  __le___  DENY APPLICATION

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

INDEX

CASE ID	AR2001059628	
SUFFIX		
RECON		
DATE BOARDED	20011127	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19710929	
DISCHARGE AUTHORITY	AR 635-212	
DISCHARGE REASON	A54.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.02	
2.		
3.		
4.		
5.		
6.