MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 30 October 2001
         DOCKET NUMBER: AR2001059854

         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. Lisa O. Guion		Analyst

The following members, a quorum, were present:

Ms. Celia L. Adolphi		Chairperson
Mr. Arthur A. Omartian		Member
Mr. Harry B. Oberg		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)

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APPLICANT REQUESTS: In effect, that his undesirable discharge (UD) be upgraded to a general, under honorable conditions discharge (GD).

APPLICANT STATES: In effect, that an error was made during the discharge process. He states that before leaving Panama, he was told that he would be given the opportunity to go through a rehabilitation program for alcohol and substance abuse at Fort Jackson, South Carolina prior to being separated from the Army and that upon his successful completion of that program he would be discharged under the provisions of Army Regulation 635-200, chapter 13 and given a GD. He also claims that the substance abuse program in Panama was not productive and that he was not afforded the opportunity to be rehabilitated at Fort Jackson. He admits to all of his faults and blames no one for his failure. Finally, he apologizes for all of his wrong doings and defects of character during his service in the Army.

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

On 20 July 1972, the applicant enlisted in the Regular Army (RA) for 3 years. He attended basic and advanced individual training (AIT) at Fort Ord, California. Upon completion of AIT he was awarded military occupational specialty (MOS) 11B (Infantryman) and he was assigned to the Panama.

The applicant’s service record documents no acts of valor, significant achievement, or service warranting special recognition. However, it does contain an extensive disciplinary history that includes his acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on three separate occasions and a civilian arrest record that includes three separate arrests by civilian authorities.

On 8 March 1973, the applicant was admitted to an Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) halfway house by command referral and on 10 April 1973, he left that program against professional advice.

On 1 September 1973, the applicant accepted NJP for sleeping on guard duty and on 17 November 1973, he was arrested for distribution of a controlled substance to a minor.

On 16 May 1974, he was readmitted to the halfway house and on 7 June 1974, he blatantly refused treatment by leaving the halfway house without permission and against professional advice. At that time, he was discharged from the program.

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On 6 June 1974, the applicant was arrested for the wrongful possession of a controlled substance. On 8 June 1974, he was arrested for larceny of private property and on 20 August 1974, he accepted NJP for being absent without leave (AWOL).

On 18 July 1974, the ADAPCP clinical director submitted a statement supporting the applicant’s immediate discharge from the Army. It indicated that the applicant had a history of drug abuse and was unable to benefit from treatment in a military setting. It finally recommended that the applicant be discharged from the Army and assigned to a Veterans Administration (VA) for further treatment subsequent to separation.

On 3 September 1974, the applicant was notified by his unit commander that separation action was being initiated against him for his unfitness for military service based on his drug dependency. On 5 September 1974, the unit commander requested that the waiver of rehabilitation transfer requirements be approved.

On 5 September 1974, the applicant consulted legal counsel and after being advised of the basis for the contemplated separation action and its effects, he completed his election of rights. He elected to have his case considered by a board of officers and to be represented by counsel. He also chose not to submit a statement in his own behalf.

On 20 October 1974, the applicant received NJP for two specifications of being disrespectful to an non-commissioned officer.

On 23 October 1974, an administrative separation board of officers convened to consider the applicant’s separation for unfitness under the provisions of chapter 13, Army Regulation 635-200. The board of officers ultimately recommended that the applicant be eliminated from military service and issued an UD.

The appropriate separation authority approved these findings and recommendations and directed the applicant be reduced to the lowest enlisted grade and receive an UD. On 29 November 1974, the applicant was discharged accordingly after completing a total of 2 years, 3 months, and 8 days of active military service.

On 30 April 1982, the Army Discharge Review Board denied the applicant’s request for an upgrade to his discharge after determining that both the characterization of the applicant’s service and the reason for his discharge were both proper and equitable.

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Army Regulation 635-200, chapter 13, in effect at the time, established policy and provided guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service. An individual could be found unfit for various types of misconduct that included frequent incidents of a discreditable nature with military authorities. An UD was normally considered appropriate for members separating under these provisions.

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 Board notes the applicant’s contention that he was denied the opportunity to be rehabilitated prior to discharge at Fort Jackson, South Carolina as promised. However, it finds insufficient evidence to support this claim.

2. The evidence of record indicates that the applicant was declared a rehabilitation failure in the Army drug and alcohol prevention program and that the ADAPCP clinical director recommended that the applicant be discharged from the Army and assigned to a VA hospital for further treatment subsequent to his discharge.

3. The record also shows that the applicant failed at two attempts to be rehabilitated in the Army’s alcohol and substance abuse program. In connection with his separation processing, the applicant’s unit commander requested a waiver of rehabilitative transfer requirements that was subsequently approved by the separation authority . Therefore, the Board finds no basis for the applicant’s claim that he was promised further rehabilitation at Fort Jackson prior to discharge and it concludes that the requested relief is not warranted.

4. The separation proceedings were conducted in accordance with applicable law and regulations and the character of the applicant’s discharge is commensurate with his overall record of service. In the absence of evidence to the contrary, the Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

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 this requirement.

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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

__CLA__ __AAO__ __HBO __ DENY APPLICATION

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

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INDEX

CASE ID	AR2001059854
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2001/10/30
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	19741129
DISCHARGE AUTHORITY	AR 635-200
DISCHARGE REASON	Chapter 13, paragraph 13-5a (unfitness)
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.0000
2.
3.
4.
5.
6.