MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:         

	BOARD DATE:             23 February 2000                 
	DOCKET NUMBER:     AR1999030000

	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. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor		Chairperson	
	Ms. Elizabeth Buchanon		Member	
	Mr. Raymond J. Wagner		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:  In effect, that his general, under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD).  

APPLICANT STATES:  In effect, that his conduct, efficiency, behavior, and performance ratings were good to excellent over his entire tenure in service.  He also indicates that he received a letter of commendation that was not included in his records and that he had been issued an HD for a prior period of service.  He also contends that his ability to serve was impaired by his youth and immaturity and while still in basic training he was advised to see a mental doctor and that his commander intended to process him for discharge but instead put the paperwork in the trash can.  The applicant also claims that he was told at the discharge point that his discharge would be automatically upgraded. 

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

On 15 October 1970, while assigned to Aberdeen Proving Grounds, Maryland, the applicant reenlisted for 6 years, which is the period of service under review.  At the time of this reenlistment he had attained the rank of specialist/E-4, was performing duties in military occupational specialty 64B (Heavy Vehicle Driver), and had completed a combat tour in Vietnam.  

He was issued a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for his period of prior service.  This document shows that he was honorably discharged on 14 October 1970, for the purpose of immediate reenlistment, after completing 2 years, 11 months, and 6 days of active military service.  

In conjunction with his reenlistment, the applicant was assigned to a second tour in Vietnam, where he arrived for duty on 4 December 1970.  There are no documented acts of valor, significant achievement, or service warranting special recognition recorded in the applicant’s official military personnel file (OMPF) for the period of service under review.  

On 11 June 1971, the applicant was tried and convicted by special court-martial of violating Article 134 of the UCMJ by wrongfully having in his possession 
0.59 grams more or less of a controlled substance (heroin).  The resultant sentence included a reduction in rank to private/E-1; confinement at hard labor for 105 days; and a forfeiture of $50.00 per month for 3 months.  

On 18 November 1971, the applicant was notified by his unit commander that elimination action had been initiated, under the provisions of Army Regulation 635-212, by reason of unfitness based on his possession of illegal drugs.  The applicant was also advised of the rights available to him and that legal counsel would be made available to him.  

On 24 November 1971, the applicant consulted legal counsel and was advised of the basis for the contemplated separation action and its effects, and of the rights available to him.  He completed his election of rights by waiving his right to consideration of his case by a board of officers; waiving personal appearance before a board of officers; waiving representation by counsel; and he elected not to submit a statement of rebuttal in his own behalf. 

The unit commander prepared a statement to accompany the separation action on the applicant.  In it the commander, in effect, stated that the applicant’s performance of duty was generally good and that he was an outstanding mechanic.  However, it was his opinion that the applicant would continue to get in trouble because he was easily influenced by his peer group to do things he knew were wrong or unlawful.  He recommended, based on the applicant’s overall record of good service, that the applicant’s service be characterized as under honorable conditions and that the applicant receive a GD.

On 8 January 1972, the appropriate authority approved the applicant’s separation for unfitness, and directed that the applicant receive a General Discharge Certificate.  Accordingly, on 14 January 1972, the applicant was separated after completing 1 year and 3 months of his current enlistment and a total of 4 years, 
2 months, and 6 days of active military service.  

Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  The regulation provided, in pertinent part, that members involved in illegal drug use were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

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.  After carefully examining the evidence of record, the Board found that the applicant’s discharge proceedings were conducted in accordance with law and regulations applicable at the time and that an upgrade of the applicant’s discharge was not warranted. 

2.  The Board noted that an undesirable discharge was normally considered appropriate for soldiers separated under the same provisions of the regulation as the applicant.  However, based on the recommendation of the unit commander, the applicant received a less harsh characterization of service.  The Board determined that the applicant received a GD, as opposed to the normal undesirable discharge, because of his overall record of service.  Therefore, the Board concluded that the character of the applicant’s discharge is commensurate with his overall record of military service and relief is not warranted.
3.  The applicant's contention that he was young and immature at the time is not sufficiently mitigating to warrant relief. The Board noted that the applicant had completed over 4 years of service prior to his separation and was almost 
23 years of age at the time of misconduct.  

4.  The Board noted the applicant’s contention that he was told when he was discharged that his discharge would be automatically upgraded.  However, the US Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant submits a request for a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.  The Board, being convinced that the reason for discharge and the characterization of service were both proper and equitable, found no such basis for relief in this case.  

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 the aforementioned 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

__rvo____  __eb____  ___rjw__  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999030000	
SUFFIX		
RECON		
DATE BOARDED	2000/02/23	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	1972/01/14	
DISCHARGE AUTHORITY	AR 635-212	
DISCHARGE REASON	Unfitness	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 189	110.0000	
2.		
3.		
4.		
5.		
6.