MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           25 July 2000
	DOCKET NUMBER:   AR1999033999

	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
Mr. David H. Keller		Director
Analyst	

  The following members, a quorum, were present:

	Mr. Ted S. Kanamine		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. John H. Kern		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 undesirable discharge be upgraded to honorable, or general under honorable conditions.

APPLICANT STATES:  He defers to counsel.  In support of his request, the applicant submitted a number of documents indexed under tabs 1 through 17, to include his attorney’s contentions, in the attached table of contents.

COUNSEL CONTENDS:  That the applicant’s infractions were extremely minor in nature and did not warrant separation under other than honorable conditions, considering that subsequent Army policy was to allow junior enlisted personnel “one bite” for minor marijuana use.  Furthermore, no attempt was made to rehabilitate the applicant.  Instead, it appears that the applicant was administered nonjudicial punishment (NJP) solely to justify initiating the elimination action.  A board of officers was initially requested, and later withdrawn, based on the advice of counsel.  Such advice is questionable since a board is required (absent a waiver) in order to render an “other than honorable discharge,” and because a general discharge is routinely negotiated in return for a board waiver.  There is no evidence provided in military records of any “approval” and/or “separation authority” action.  Many senior government officials have acknowledged using/possessing marijuana during the Vietnam War (e.g., our current President and Vice President).  Lastly, blanket pardons were issued to wartime draft dodgers in effect removing their stigma, while one still remains on this applicant who volunteered to serve.

Counsel concludes by informing the Board that the applicant has been a good citizen for 30 years while carrying this stigma of a bad discharge.  He outlines the applicant’s various jobs and educational achievements in this time, as well as his many volunteer services to his community.

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

He enlisted on 15 November 1967 at the age of 17 and, after training, was assigned to Thailand.

On 27 June 1968, the applicant was administered NJP under Article 15, Uniform Code of Military Justice, for operating a government vehicle without an operator’s license.

On 12 October 1968, the applicant was administered NJP for absenting himself from his unit and remaining absent until apprehended and returned to military custody, and for possessing a switchblade knife having a blade exceeding 
2 ½ inches in length.

On 4 October 1968, the applicant was tried by a special court-martial and found guilty of wrongful possession of marijuana and failure to report to his appointed place of duty.  He was sentenced to confinement at hard labor for 4 months (suspended for 6 months), forfeiture of $70.00 per month for 4 months, and reduction in grade to private (E-1).

On 26 October 1968, the applicant’s commander recommended he be discharged for unfitness under the provisions of Army Regulation 635-212.  The applicant consulted with counsel and waived consideration by a board of officers. He acknowledged that he might expect to encounter substantial prejudice in civilian life if he was issued a discharge under other than honorable conditions, and that he may be ineligible for many or all benefits as a veteran under both federal and state laws.  He declined to submit a statement in his own behalf.

Action by the separation authority is not available in the applicant’s military records.  The Report of Transfer or Discharge, DD Form 214, indicates that he was discharged on 18 January 1969 for unfitness under the provisions of Army Regulation 635-212, and was issued an Undesirable Discharge Certificate.  He had 1 year, 2 months and 4 days of creditable service.

Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel.  The regulation provided, in pertinent part, that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

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 action by the separation authority approving the applicant’s discharge is not on file.  The Board notes that the applicant’s record contains a properly constituted DD Form 214 that identifies the reason and characterization of the discharge and therefore presumes government regularity in the discharge process.

2.  Contrary to counsel’s contentions, the applicant was not discharged for drug use; he was separated for unfitness because of frequent incidents of a discreditable nature with military authorities.

3.  While the Board has taken cognizance of the applicant’s good post-service conduct and accomplishments, these factors alone do not warrant the relief requested.

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

__tdk___  __sk_____  __jhk____  DENY APPLICATION

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

INDEX

CASE ID	AR1999033999	
SUFFIX		
RECON		
DATE BOARDED	20000725	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19690118	
DISCHARGE AUTHORITY	AR635-212	
DISCHARGE REASON	A51.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.	142.00	
3.		
4.		
5.		
6.