MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:            25 April 2002                  
	DOCKET NUMBER:   AR2002067676

	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. Stephanie Thompkins		Analyst	

  The following members, a quorum, were present:

	Ms. Joann H. Langston 		Chairperson	
	Mr. George D. Paxson		Member	
	Mr. Charles Gainor		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 under honorable conditions.

APPLICANT STATES:  That his commander did not like him and stated he would make sure he never got back into the service.  He also states that he had no frequent incidents of a discreditable nature with civil or military authorities.  He only had one military and one civilian incident.  He does not believe what he did deserves a bad conduct discharge and he is not asking for an honorable discharge.  He submits his own statement, dated 19 December 2001, describing the circumstances surrounding his discharge, in support of his application.

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

He enlisted in the Reserve as a private, pay grade E-1, on 20 March 1979 with a waiver of moral eligibility for theft.  He entered on active duty for training on 28 February 1980.

He attained the rank of pay grade E-2 on 19 December 1979.

On 2 May 1980, he was counseled for being caught by the Military Police with 18 black capsules, which were determined to be a controlled substance.

On 5 May 1980, he was counseled for failure to go to his appointed place of duty.

He was punished under Article 15, Uniform Code of Military Justice on 5 May 1980, for wrongful possession (18 unknown capsules, more or less), of a controlled substance.  His punishment included reduction to pay grade E-1, forfeiture and confinement for 25 days.

On 2 June 1980, he was counseled regarding being dropped from the Supply Course as an academic failure.  He failed the test three times.  It was recommended he be eliminated under Army Regulation 635-200, chapter 14, for misconduct.

On 18 June 1980, he was counseled for overdose of numerous amounts of unknown pills.  It was again recommended he be eliminated under Army Regulation 635-200, chapter 14, for misconduct.

On 27 June 1980, his commander recommended he be eliminated from the service for misconduct.  On the same day, through counsel, the applicant acknowledged the proposed separation action, waived his rights to an appearance before a board of officers, and elected not to submit a statement in 

his own behalf.  He also acknowledged he understood the possible effects of a UOTHC discharge and the results of the issuance of such a discharge.
On 24 July 1980, the appropriate authority approved his discharge and directed the issuance of a UOTHC discharge certificate.

He was discharged on 1 August 1980 under the provisions of Army Regulation 635-200, chapter 14, for frequent incidents of a discreditable nature with civil or military authorities, in pay grade E-1.  He was credited with 5 months and 3 days for this service.

On 5 February 1981, the Army Discharge Review Board denied his 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, and convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

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 view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge.  He has not shown error, injustice, or inequity for the relief he now requests.  

2.  The Board has noted his contentions that his commander wanted to make sure he never got back into the service and he did not have frequent incidents of a discreditable nature with civil or military authorities, he only had one civil and military incident.  However, the applicant’s discharge was equitable based on his record of misconduct.  He was afforded the opportunity to appear before a board of officers, but he declined to do so.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.

3.  The Board also notes that applicant’s record of service was due to his own willful acts of misconduct and concludes that his discharge was proper and equitable.
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

_cg_____  __gdp___  __jhl___     DENY APPLICATION

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

INDEX

CASE ID	AR2002067676	
SUFFIX		
RECON	  	
DATE BOARDED	20020425	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	A70	
2.		
3.		
4.		
5.		
6.