MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 10 October 2001
         DOCKET NUMBER: AR2001059884

         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. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Mr. Luther L. Santiful		Chairperson
Mr. Charles Gainor		Member
Mr. Joe R. Schroeder		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: That his bad conduct discharge be upgraded to general.

APPLICANT STATES: In effect, that he was informed by the court that he would be allowed to continue his military service after serving his sentence to confinement and being sent to a retraining brigade. However, he was discharged instead. He contends that his military career was strong and stable prior to his stupid mistake for being involved in drugs and that he had advanced to the rank and pay grade of E-5. He states that since his discharge he has gone through the substance abuse program three times and is currently employed and working with substance abuse veterans. He also addresses the issue of insanity and states that one has to be insane to throw away a military career by using drugs and that compelling circumstances from his addictive behavior prolonged his substance abuse. He also states that he “sold no drugs”. In support of his application, he submits an undated letter of explanation; a letter, dated
16 September 1992, from the Department of Veterans Affairs; three letters pertaining to the applicant’s involvement in aftercare programs; and a Certification of Military Service, dated 16 May 1989.

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

The applicant enlisted in the U.S. Army Reserve on 4 May 1978 under the delayed entry program and entered active duty on 23 May 1978.

On 2 August 1978 nonjudicial punishment (NJP) was imposed against the applicant for possession of marijuana. His punishment consisted of a forfeiture of pay, extra duty and restriction.

On 25 September 1979 NJP was imposed against the applicant for failure to go at the time prescribed to his place of duty (an Alcohol and Drug Abuse Prevention and Control Program appointment). His punishment consisted of a forfeiture of pay (suspended for 90 days) and extra duty.

On 15 April 1980 NJP was imposed against the applicant for possession of marijuana. His punishment consisted of a forfeiture of pay and a reduction to
E-2.

The applicant reenlisted on 28 November 1980 for a period of 3 years. On
20 June 1983 the applicant extended his enlistment for 12 months.

On 19 July 1984 the applicant was convicted by a general court-martial of possessing methamphetamine with intent to distribute; (two specifications) distributing methamphetamine; and possessing marijuana. He was sentenced to be discharged from the service with a bad conduct discharge, reduction to E-1, forfeiture of all pay and allowances, $2000 fine and confinement at hard labor for 8 months. On 7 August 1984 the convening authority approved the sentence.

The Court of Military Review affirmed the findings and sentence on 23 November 1984.

The applicant underwent a mental status evaluation on 24 January 1985 and competent medical authority determined his behavior was normal, he was fully alert and fully oriented. His mood was unremarkable, his thinking process was clear and his thought content was normal. The medical doctor found that the applicant had the mental capacity to understand and participate in the proceedings, was mentally responsible and met the retention requirements of Army Regulation 40-501, chapter 3.

The applicant’s appellate review was completed on 13 March 1985.

Accordingly, the applicant was discharged pursuant to the sentence of a general court-martial on 26 March 1985. He was issued a Bad Conduct Discharge Certificate. He had served 6 years, 3 months and 27 days of total active service and 197 days of lost time due to confinement.

The applicant’s DA Form 2-1 (Personnel Qualification Record) shows that the applicant was promoted to specialist four/pay grade E-4 on 1 October 1981, his highest grade held.

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 considered the applicant’s contention that he was informed by the court that he would be allowed to continue his military service after serving his sentence to confinement and being sent to a retraining brigade. However, there is no evidence of record, and the applicant has provided no evidence, to support this contention.

2. The applicant’s contentions that that his military career was strong and stable prior to his stupid mistake for being involved in drugs and that he had advanced to the rank and pay grade of E-5, are not supported by the evidence of record. Evidence of record shows that the applicant’s military career included a pattern of drug abuse. He received his first NJP on 2 August 1978 for possession of marijuana, his second NJP on 25 September 1979 for failure to go at the time prescribed to his place of duty (an Alcohol and Drug Abuse Prevention and



Control Program appointment) and his third NJP on 15 April 1980 for possession of marijuana. Evidence of record also shows that the highest grade held by the applicant was specialist four/pay grade E-4, not pay grade E-5.

3. The applicant’s contention pertaining to the issue of insanity is not supported by the evidence of record. Evidence of record shows that the applicant underwent a mental status evaluation prior to his separation and competent medical authority determined his behavior was normal, he was fully alert and fully oriented. His mood was unremarkable, his thinking process was clear and his thought content was normal. The medical doctor found that the applicant had the mental capacity to understand and participate in the proceedings, was mentally responsible and met the retention requirements of Army Regulation 40-501, chapter 3.

4. His contention that he “sold no drugs” is also not supported by the evidence of record. Evidence of record shows that the applicant was convicted by a general court-martial of distributing methamphetamine on two separate occasions.

5. Trial by court-martial was warranted by the gravity of the offenses charged. Conviction and discharge were effected in accordance with applicable law and regulations.

6. The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

7. 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.

8. 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.

9. 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____ CG______ JRS_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2001059884
SUFFIX
RECON
DATE BOARDED	20011010
TYPE OF DISCHARGE	(BCD)
DATE OF DISCHARGE	19850326
DISCHARGE AUTHORITY	AR 635-200 Chapter 3
DISCHARGE REASON	As a result of court-martial
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	110.0200
2.
3.
4.
5.
6.