MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            26 April 2000
	DOCKET NUMBER:   AR1999033866

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Stanley Kelley		Chairperson	
	Ms. Karol A. Kennedy		Member	
	Mr. Curtis L. Greenway		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 to a general discharge.

APPLICANT STATES:  In effect, that the Department of Veterans Affairs (also known as the VA) deemed his service as under honorable conditions for VA purposes with entitlement to benefits based on his service and he desires to have his military records corrected accordingly.

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

He enlisted in Shreveport, Louisiana on 8 January 1973 for a period of 3 years, assignment to Hawaii, and training under the Buddy Basic Training Plan.  He was transferred to Fort Polk, Louisiana to undergo his basic training.  At the time of his enlistment he indicated on his contract that he had been arrested for possession of marijuana on 8 September 1972 and that the charge had been dismissed.

On 6 February 1973 nonjudicial punishment (NJP) was imposed against him for being disrespectful in language towards his acting NCO.  His punishment consisted of a forfeiture of pay, extra duty, and restriction.

While undergoing advanced individual training (AIT) at Redstone Arsenal, Alabama, NJP was imposed against him on 18 July 1973 for failure to go to his place of duty.  His punishment consisted of a forfeiture of pay, extra duty and restriction.

On 24 September 1973, NJP was again imposed against him for failure to go to his place of duty.  His punishment consisted of a reduction to the pay grade of   E-1, a forfeiture of pay, extra duty and restriction.

On 12 February 1974, NJP was again imposed against him for failure to go to his place of duty.  His punishment consisted of a reduction to the pay grade of E-1 and a forfeiture of pay.

He completed his AIT and was transferred to Hawaii on 14 May 1974 for duty as a wire-guided missile systems repairman.

On 11 June 1974, NJP was imposed against him for being absent from his place of duty.  His punishment consisted of a reduction to the pay grade of E-1, extra duty and a forfeiture of pay.

The applicant received an initial enlisted efficiency report (EER) on 12 June 1974 that deemed his performance as below average and recommended that he not be promoted.  The supporting comments indicate that his job performance when he was at work was average and that he acted in a disrespectful manner to several NCOs on several occasions.

On 30 October 1974 he was convicted by a special court-martial of failure to go to his place of duty and possession of marijuana.  He was sentenced to confinement at hard labor for 2 months and a forfeiture of pay. 

He was subsequently transferred to the Army Retraining Brigade at Fort Riley, Kansas on 12 November 1974 where his conduct and efficiency were deemed to be unsatisfactory. 

The facts and circumstances surrounding the applicant’s administrative discharge are not present in the available records.  However, his records do contain a duly constituted report of separation (DD Form 214) that is signed by the applicant and indicates that he was discharged under other than honorable conditions from the Army Retraining Brigade on 23 January 1975, under the provisions of Army Regulation 635-200, chapter 13, for unfitness due to frequent involvement of a discreditable nature with authorities.  He had served 1 year, 10 months, and 27 days of total active service and had 49 days of lost time due to confinement. 

An FBI report contained in the applicant’s records also indicates that in addition to his arrest for possession of marijuana in 1972, he was also arrested in Huntsville, Alabama on 4 October 1973 for possession of marijuana.

There is no evidence in the available records to show that the applicant applied to the Army Discharge Review Board within that board’s 15-year statute of limitations.

On 13 November 1975 the applicant underwent a formal hearing at the VA Regional Office in Waco, Texas to determine his entitlement to veterans benefits under the regulations administered by that agency.  The VA regional office opined, in effect, that the applicant’s conviction by a special court-martial was unjust because the circumstantial evidence used by the Army was inadequate to establish guilt and that his conduct at the Retraining Brigade was understandable given his deniability of the charges against him.  Accordingly, the VA determined that his discharge was to be held under honorable conditions for VA purposes and entitled him to all benefits based on his service from 8 January 1973 to 23 January 1975. 

Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 13 established policy and procedures for separating personnel for unfitness.  Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, and commission of a serious offense.  A discharge under other than honorable conditions 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, and advisory opinion(s), it is concluded:

1.  In the absence of evidence to the contrary, it must be presumed that his administrative separation was accomplished in compliance with applicable regulations with no indication of 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 has failed to convince the Board through the evidence submitted or the evidence of record that his discharge was unjust and should be upgraded.

4.  It is also noted that the Board does not have jurisdiction over the policies administered by the VA nor does that agency have jurisdiction over the policies of the Department.  Accordingly, an action taken by the VA to grant the applicant benefits has no bearing on the actions taken by the Department nor does it constitute a basis to upgrade a duly constituted discharge.

5.  In addition, the Board notes that the applicant established a pattern of misconduct which included at least two arrests for possession of marijuana before he was convicted by a special court-martial.  Therefore, given his undistinguished record of service, an upgrade of his discharge is not warranted.

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

__sk____  ___kak__  ___clg___  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999033866	
SUFFIX		
RECON		
DATE BOARDED	2000/04/26	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1975/01/03	
DISCHARGE AUTHORITY	AR635-200, CH13	
DISCHARGE REASON	583/UNFIT	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  583 	144.5000/A51.00	
2.		
3.		
4.		
5.		
6.