MEMORANDUM OF CONSIDERATION


	IN THE CASE OF:	BOARD DATE:                              
	DOCKET NUMBER:    AC97-08814

	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.  The following members, a quorum, were present:


M

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	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 discharge be upgraded based on his Vietnam service.

APPLICANT STATES:  In effect, that he knows he made a mistake but that he has paid for it over the years.

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

On 15 February 1968 the applicant entered the Regular Army for a period of 
3 years at the age of 19.  He successfully completed basic training at Fort Knox, Kentucky and advanced individual training (AIT) at Fort Gordon, Georgia.  Upon completion of AIT he was awarded military occupational specialty (MOS) 36C (Lineman) and assigned overseas to a combat tour in Vietnam as his first permanent duty station.

The applicant’s record indicates that the highest grade he held on active duty was specialist/E-4 and that he received the following awards and decorations: the National Defense Service Medal; the Vietnam Service Medal; and the Republic of Vietnam Campaign Medal/with 60 device.  However, the record also contains an extensive record of disciplinary infractions which includes:  acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the UCMJ, on two separate occasions and one conviction by special courts-martial.

On 23 January 1969 the applicant accept his first NJP for being derelict in the performance of his duties, in that he was willfully drinking intoxicating beverages while performing duties as an assistant driver.  His punishment for this offense was 14 days of extra duty and restriction.

On 21 August 1969 the applicant accepted his second NJP for failing to go to his prescribed place of duty, day guard duty.  His punishment included a forfeiture of $40.00 (suspended) and 14 days of restriction and extra duty.

On 14 May 1971 the applicant was tried by special court-martial for three specifications of violation of Article 86 for being AWOL for the following periods: 3 to 14 January 1970; 21 March 1970; and 24 February to 9 April 1971.  He was found guilty and the resultant  sentence was confinement at hard labor for 
5 months and forfeiture of $80.00 per month for 5 months.

On 6 July 1971 the applicant’s unit commander advised the applicant of his intent to initiate elimination action on him, under the provisions of paragraph 6(a) of Army Regulation 635-212 for unfitness.  The unit commander cited as his reasons for the action the documented disciplinary record of the applicant; the applicant’s admission that he used drugs while in service and still experienced flashbacks; and the applicant’s desire to be discharged because he thought the Army was a joke.  The applicant consulted counsel, and after being advised of the basis for the contemplated elimination action, completed his election of rights on which he waived the following rights: consideration of his case before a board of officers; personal appearance before a board of officers; representation by counsel; and he elected not to make a statement in his own behalf.  

On 6 July 1971 the appropriate authority waived rehabilitation requirements, approved the separation action on the applicant and directed the applicant be issued a UD.  Accordingly, on 16 July 1972 the applicant was discharged after completing 2 years and 9 days of active military service and accruing 357 days of time lost due to AWOL and confinement.

Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

Under Department of Defense Memoranda of 7 July and 13 August 1971, the latter sometimes known as the Laird Memorandum, administrative discharges under other than honorable conditions, issued solely on the basis of personal use of drugs, or possession of drugs for the purpose of such use, will be reviewed for recharacterization; that under such policy, each Secretary of a military department is authorized to issue a discharge under honorable conditions upon establishment of facts consistent with this policy. 

On 24 September 1980 the Army Discharge Review Board (ADRB) reviewed the applicant’s case based on the guidance contained in the Laird Memorandum discussed above.  The ADRB concluded the applicant’s case, based on his disciplinary record and lost time, did not warrant full relief in the form of an honorable discharge; however, they did grant the applicant partial relief in the form of a general/under honorable conditions discharge. 

In a 1 October 1980 letter the President of the ADRB advised the applicant of this decision.  A new DD Form 214 (Certificate of Release or Discharge from Active Duty) reflecting the ADRB decision was prepared and is contained in the record.  

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.  The Board concurs with the findings and conclusions of the ADRB and presumes that the applicant's administrative separation was accomplished in compliance with applicable regulations. There is no indication of procedural errors by the ADRB which would tend to have substantially jeopardized the applicant's rights.

2.  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.
3.  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.

NOTE:  The Army Review Board Agency, St. Louis, should provide the applicant appropriate copies of the DD Form 214 issued as a result of the 1980 ADRB decision.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION




						Loren G. Harrell
						Director