MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           08 JANUARY 2002                   
	DOCKET NUMBER:   AR2001064994

	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. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. Terry L. Placek		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:  Reconsideration of his earlier appeal to correct his military records by upgrading his undesirable discharge to an honorable discharge.

APPLICANT STATES:  In effect, that he was offered time in the stockade or an undesirable discharge and that he did not realize the consequences of the undesirable discharge.  He also notes that he only had in his “possession a couple joints of marijuana.”  He states he needs his discharge upgraded in order to receive VA benefits.

NEW EVIDENCE OR INFORMATION:  The applicant submitted a request to have his discharge upgraded in August 2001.  At the time, attempts to retrieve his Official Military Personnel File (OMPF), in order to evaluate that request, were not successful and the applicant was so informed in a letter dated 18 October 2001.  However, recently his OMPF was located and provided to the Board.  A review of that OMPF revealed that an earlier request by the applicant to upgrade his discharge had been considered and denied by the Board in 1993.  As such, the applicant’s August 2001 application was ultimately determined to be a request for reconsideration and his contentions were considered new arguments that required Board consideration.

Incorporated herein by reference are military records, which were summarized in a memorandum, prepared to reflect the Board's original consideration of his case (AC93-06041) on 24 March 1993.  

On 25 June 1970, the applicant consulted with counsel and acknowledged that his commander had initiated action to administratively separate him (the applicant) from active duty under the provisions of Army Regulation 635-212, for frequent incidents of a discreditable nature with civil or military authorities.  In his statement, the applicant acknowledged that he understood that “as a result of discharge under conditions other than honorable, [he] may be ineligible for any or all benefits as a veteran under both Federal and State laws, and that [he] could expect to encounter substantial prejudice in civilian life as a result of this action.”

The applicant’s commander cited numerous records of nonjudicial punishment  (NJP) and conviction by a special court-martial for possession of “one ounce, more or less, of marijuana” and communicating a threat to a noncommissioned officer as the basis for his separation recommendation.

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 applicant’s contention that he was not aware of the consequences of his discharge is without foundation.  The evidence confirms that he indicated he understood the consequences of an undesirable discharge when he acknowledged his commander’s proposed separation action on 25 June 1970.

2.  The Board also notes that the applicant’s separation action was initiated not only because of his court-martial conviction for possession of marijuana, but also because of his numerous NJP actions.

3.  There is no evidence, and the applicant has not provided any, that he was given the option of confinement or separation and the Board concludes that even if the applicant had been given that option it would not serve as a basis to upgrade his discharge.

4.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

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 that requirement.

6.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

7.  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

__LLS___  __RWA _  __TLP___  DENY APPLICATION

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

INDEX

CASE ID	AR2001064994	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020108	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.