MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            24 September 2002
	DOCKET NUMBER:   AR2002074133

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Kenneth W. Lapin		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 discharge under other than honorable conditions be upgraded to honorable.

APPLICANT STATES:  In effect, that he was told that he was being separated from the service under Army Regulation 635-200, chapter 13, with an honorable discharge.  However, when he arrived at Fort Jackson, South Carolina, he was informed that he was being separated under the provisions of Army Regulation 635-200, chapter 14.  He further states that he did not want to get out of the Army and requested that he be given correctional custody and a 6-week training program instead, because he was just a kid screwing up.  He also states that many young men get involved with hashish and many were offered some type of help; however, he was never offered any help with his problem.  He continues by stating that he made many mistakes while in the Army and has endeavored to correct them over the years.  He became a chef and is now a licensed real estate agent.  He has a son in the Army and is making sure he does not repeat his (the applicant’s) mistakes.  He also states that it is his desire to obtain understanding from the Board and he requests that he be afforded the benefits that are attributed to an honorable discharge.

EVIDENCE OF RECORD:  The applicant's military records, though somewhat incomplete, show:

He was born on 29 November 1961 and enlisted in Phoenix, Arizona, on 25 March 1980, for a period of 3 years, training as a food service specialist and assignment to Europe.  He successfully completed his training and was transferred to Germany on 29 July 1980.

He was advanced to the pay grade of E-2 on 27 September 1980 and nonjudicial punishment (NJP) was imposed against him on 18 February 1981, for the wrongful possession, transfer and sale of marijuana in hashish form and the wrongful possession of drug paraphernalia.  His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of pay and correctional custody for 20 days.

Although the specifics are not present in the available records, his records indicate that NJP was imposed against him on 5 February 1982 and again on 30 March 1982, for multiple specifications of failure to go to his place of duty.  His punishment for this NJP was a forfeiture of pay, extra duty and restriction. 

On 3 May 1982, the applicant’s commander notified him that he was initiating action to separate him from the service for misconduct, based on his frequent involvement in incidents of a discreditable nature with civil and military authorities.  He was advised of his rights and further advised to seek the assistance of counsel.

On 13 May 1982, the appropriate authority approved the recommendation for discharge and directed that the applicant be discharged under other than honorable conditions.

Accordingly, the applicant departed Germany on 20 May 1982 and was transferred to Fort Jackson for separation.  He was discharged under other than honorable conditions on 21 May 1982, under the provisions of Army Regulation 635-200, chapter 14, for misconduct, based on his involvement in frequent incidents of a discreditable nature with civil or military authorities.  He had served 2 years, 1 month and 27 days of total active service.

He applied to the Army Discharge review Board (ADRB) on 1 May 1996, requesting that his discharge be upgraded.  He offered no evidence or argument to support his request for an upgrade and the ADRB determined that his discharge was proper and equitable under the circumstances.  The ADRB voted unanimously to deny his request on 19 February 1997.

Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established the policy and prescribes procedures for separating members for various types of misconduct that included frequent involvement in incidents of a discreditable nature with civil or military authorities.  It provided that action would 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 was normally considered appropriate.

Chapter 13 of that regulation provided for the separation of enlisted personnel for unsatisfactory performance.  An honorable or general discharge was required for separation under that chapter.

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 the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons therefor were appropriate considering all of the available facts of the case.

3.  The applicant’s contention that he was led to believe that he was being separated under chapter 13 has been noted by the Board.  However, the available evidence of record clearly states that he was notified by his commander that he was being recommended for separation under chapter 14 for misconduct. Based on the available facts and circumstances, it does not appear that the applicant was eligible for separation under chapter 13. 

4.  The Board commends the applicant for his post-service accomplishments.  However, given the lack of evidence to show error or injustice in his case, his accomplishments are not sufficiently mitigating to warrant an upgrade of a duly constituted discharge, when compared to his undistinguished record of service. 

5.  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.

6.  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

__kwl ___  ___dh___  ___ao___  DENY APPLICATION

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

INDEX

CASE ID	AR2002074133	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/09/24	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1982/05/21	
DISCHARGE AUTHORITY	AR635-200/CH14	
DISCHARGE REASON	MISCONDUCT	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  626	144.6000/A60.00	
2.		
3.		
4.		
5.		
6.