MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 6 November 2001
         DOCKET NUMBER: AR2001060084

         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:

Ms. Deborah S. Jacobs		Chairperson
Mr. Elzey J. Arledge, Jr.		Member
Mr. Donald P. Hupman, Jr.		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 bad conduct discharge be upgraded.

APPLICANT STATES: In effect, that as the result of a “false alcoholism charge” he received an unfair discharge. He contends that he was given alcohol drinking privileges by his unit captain and later this captain used alcoholism as a “foot to stand on” to chapter him out of the Army. In a lengthy petition to the Board, the applicant states, in effect, that unlawful actions were taken against him by the Army wherein he sustained personal injury. He contends that he suffered personal injury for loss of professional education, an unlawful discharge, libel, “deformation of character” and that many of his constitutional rights were violated. He contends that he was falsely imprisoned with illegal orders and that he was court-martialed for illegal orders.

The applicant provided a copy of a lengthy appeal he wrote to the President of the United States, dated 7 May 2001, wherein he contends, in effect, that his rights were violated by the lower courts of the Government and the Supreme Court. He contends that he suffered personal injury by “double jeopardy”. He states that the Army ruined his career by accusing him of becoming an alcoholic in approximately 13 and ½ days. He contends that his unit captain gave him alcohol drinking privileges in order to make him appear guilty of alcoholism and then used that false accusation (libel) to destroy his Army career and life. He contends that his redress for a grievance began in the United States District Court in Tampa, Florida, on 18 February 1997. However, his case was dismissed by a judge who did not uphold the Code of Judicial Conduct. He proceeded on with his case in the U.S. Court of Appeals; however, his case was dismissed because he did not file within the given time frame. He then appealed petition for review by the Supreme Court on 20 August 1999. He contends that the Supreme Court dismissed his case without giving him any type of justice.

In support of his application, he also submits a letter from the U.S. Army Reserve Personnel Center, dated 7 November 1996, to a Member of Congress; page two of a document titled “Concrete Evidence Format the Criminal Conspiracy Acts of Major General [last name] and Subordinates”; DA Form 4187 (Personnel Action), dated 30 October 1989; page one of Special Court-martial Order Number
22, dated 12 December 1989; a memorandum, dated 23 May 1990; pages two through nine of a letter titled “Concrete Evidence Format”; page two of Special Court-martial Order Number 22, dated 12 December 1989; a memorandum, dated 14 March 1990; DD Form 368 (Request for Discharge or Clearance from Reserve Component), dated 17 March 1989; DA Form 4187 (Personnel Action), dated 20 February 1989; enlistment documents; DA Form 4465 (ADAPCP Client Intake/Screening Record), dated 15 June 1989; DA Form 4466 (ADAPCP Client Progress Report), dated 1 September 1989; medical records; DA Form 4187 (Personnel Action), dated 16 April 1990; service personnel records; and a letter, dated 9 August 2001.
EVIDENCE OF RECORD: The applicant's military records show:

While serving in the Army National Guard, the applicant was ordered to active duty for training on 13 September 1988. He was released from active duty on
12 February 1989 and transferred to the Army National Guard. The applicant enlisted in the Regular Army on 17 March 1989 for a period of 4 years in military occupational specialty 91A (medical specialist).

The applicant’s medical records contain a Standard Form 513 (Consultation Sheet), dated 2 August 1989, which shows the applicant was enrolled in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) for alcohol abuse and cocaine use. He was twice referred to the Mental Health Center by his commander for odd and inappropriate behavior. However, on both occasions the applicant was hostile, refused to cooperate with interview, or to complete any psychological testing. The psychologist’s impression ruled out alcohol and cocaine abuse; and determined the applicant had schizotypal personality features, possibly secondary to cocaine abuse. His records also show that he tested positive for cocaine while enrolled in the ADAPCP.

DA Form 4187 (Personnel Action), dated 18 September 1989, shows the applicant was reduced from private (E-2) to private (E-1) effective 15 September 1989 as a result of a field grade Article 15. No other details are known.

On 28 November 1989, the applicant was convicted by a special court-martial of disobeying four lawful commands from two superior commissioned officers. He was sentenced to a bad conduct discharge, confinement for 6 months and forfeiture of $466 for 6 months. The convening authority approved the sentence on 12 December 1989.

On 14 May 1990, the Court of Military Review affirmed the findings of guilty and the sentence. His appellate review was completed on 10 September 1990. Accordingly, the applicant was discharged pursuant to the sentence of a special court-martial on 25 October 1990. He was issued a Bad Conduct Discharge Certificate. He had served 1 year, 2 months and 9 days of total active service and had 150 days lost time due to confinement.

On 18 February 1997, the Army Discharge Review Board (ADRB) denied the applicant’s request for upgrade of his discharge to general.

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 contentions pertaining to a “false alcoholism charge” and that his unit used alcoholism as a “foot to stand on” to chapter him out of the Army. However, there is no evidence of record, and the applicant has provided no evidence, which shows he was diagnosed as alcohol dependent or that he was discharged under the provisions of Army Regulation 635-200, chapter 9, for alcohol rehabilitation failure.

2. The applicant’s contentions that unlawful actions were taken against him and that his constitutional rights were violated are not supported by the evidence of record. The applicant was afforded the opportunity to address these issues at court-martial and he has failed to show that the court-martial proceedings were not conducted in accordance with law and regulations applicable at the time or that he was denied due process.

3. Evidence of record shows the convening authority approved the special court-martial sentence on 12 December 1989, the Court of Military Review affirmed the findings of guilty and the sentence on 14 May 1990 and the appellate review was completed on 10 September 1990.

4. The Board also considered the applicant’s contentions that he was falsely imprisoned with illegal orders and that he was court-martialed for illegal orders. These are matters which were resolved at trial by court-martial. These proceedings were reviewed and affirmed by the Court of Military Review. Therefore, it is clear that the applicant’s rights were protected throughout the judicial process.

5. Trial by court-martial was warranted by the gravity of the offenses charged. Conviction and discharge were affected in accordance with applicable law and regulations. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

6. The ADRB denied the applicant’s request for a discharge upgrade on
18 February 1997.

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

DSJ____ EJA_____ DPH____ DENY APPLICATION

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

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INDEX

CASE ID	AR2001060084
SUFFIX
RECON
DATE BOARDED	20011106
TYPE OF DISCHARGE	(BCD)
DATE OF DISCHARGE	19901025
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.