MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 18 October 2001
         DOCKET NUMBER: AR2001060929

         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. Fred N. Eichorn		Chairperson
Mr. Melvin H. Meyer		Member
Ms. Barbara J. Ellis		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: That his discharge under other than honorable conditions be upgraded.

APPLICANT STATES: That he believes his time in the Army was honorable except for one minor incident which led to his discharge. He contends that upon his return from Vietnam he was suffering from severe post traumatic stress related problems and severe depression which led him to self medicate with non-prescription drugs. He goes on to state that while serving in Fort Lewis, Washington, he was arrested for a minor drug possession charge and upon completing court ordered treatment he was informed the record would be expunged. He contends that his discharge should be upgraded for the following reasons: (1) his record of conviction by civil authorities while he was in the service indicates only an isolated offense; (2) aside from this one incident his service record was satisfactory; (3) his drug use involved a small amount; (4) his drug use was off duty and off base; (5) he believes the conviction did not meet Uniform Code of Military Justice punishment standards; (6) his conduct and efficiency ratings and proficiency marks were pretty good; (7) he had combat service; (8) his records of promotion show he was a good serviceman; (9) his ability to serve was impaired by his youth and immaturity; (10) his combat related psychiatric problems impaired his ability to service; and (11) when he returned from Vietnam he could not take stateside duty anymore. He states that upon leaving the service he received treatment for his depression and had no further incidents with the law, that he has led a clean and honorable civilian life and that he has matured and learned that there is professional help for which he suffers and for which he is in counseling. In support of his application, he submits a letter of explanation; and seven character reference letters.

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

The applicant entered active duty on 26 June 1969. He successfully completed basic and advanced individual training and was transferred to Vietnam for duty as an aircraft maintenance repairman on 15 December 1969.

On 19 July 1971, while in Vietnam, the applicant was convicted by a special court-martial of possessing heroin, violating a lawful general regulation and failing to go at time prescribed to his place of duty. He was sentenced to be confined at hard labor for 3 months, to forfeit $75 per month for 4 months and to be reduced to private/E-1. The convening authority approved the sentence on
20 August 1971.

The applicant was transferred back to the United States on 22 September 1971.

The available records indicate that nonjudicial punishment was imposed against the applicant for being absent from his place of duty (1700-1920) on
17 November 1971. No other details are available.
Records also show that nonjudicial punishment was imposed against the applicant for being absent from his place of duty from 12 January 1972 to
13 January 1972. Unit Orders Number 1, dated 18 January 1972, show the applicant was reduced in rank and received a forfeiture in pay.

The facts and circumstances surrounding the applicant’s discharge are not contained in the available records. However, the applicant’s Army Discharge Review Board (ADRB) Brief, dated 21 August 1974, shows that on 20 March 1972 the applicant’s commander recommended that he be separated under the provisions of Army Regulation 635-206, Section VI, for conviction by civil court. He based his recommendation for separation on the applicant’s conviction in the State of Washington of Unlawful Delivery of a Controlled Substance (Marijuana) on 29 February 1972. He recommended that the applicant be separated with a general discharge due to his problems involving drugs, that he should not be retained on active duty but should not be further punished by a less than general discharge.

The ADRB Brief also shows that the first and second endorsements concurred with the recommendation for separation and recommended that the applicant be furnished an undesirable discharge because he was unlawfully selling a controlled substance.

On 9 March 1972 the applicant was referred to the Mental Hygiene Consultation Service following a conviction by civilian authorities for transportation of marijuana. He was diagnosed with a passive-aggressive personality, chronic, moderate, manifested by extensive drug use.

On 27 April 1972 the applicant underwent a separation physical examination and was found qualified for separation with a physical profile of 111111.

On 15 May 1972 the applicant was discharged under other than honorable conditions under the provisions of Army Regulation 635-206, for misconduct due to being convicted by a civil court during his current term of active military service. He had served 2 years, 7 months and 3 days of total active service with 107 days lost due to AWOL. The Board notes the applicant was separated from service on temporary records and a Soldier’s Affidavit.

On 27 August 1974 the ADRB denied the applicant’s request for a discharge upgrade.

Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel for misconduct. Section VI of the regulation provided, in pertinent part, for the separation of personnel for conviction by civil court. An undesirable discharge was normally considered appropriate.

Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. Whenever there is doubt, it is to be resolved in favor of the individual.

Army Regulation 635-200, paragraph 3-7, provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the soldier’s separation specifically allows such characterization.

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 reviewed the applicant’s record of service and determined that the quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, the applicant is not entitled to an honorable discharge.

2. The Board considered the applicant’s contention that his conviction by civil authorities (unlawful delivery of marijuana) was an isolated offense. However, evidence of record shows that prior to his civilian conviction, the applicant was convicted by a special court-martial of another drug offense, possession of heroin.

3. The Board considered the applicant’s contentions that his record of service was satisfactory, that his conduct and efficiency ratings and proficiency marks were pretty good, that he served in combat and that his record of promotions indicate he was a good soldier. However, the Board reviewed the applicant’s record of service which included two nonjudicial punishments, one special court-martial conviction and 107 days lost time and determined that his military record was not satisfactory. Therefore, the applicant is not entitled to a general discharge.

4. The Board also considered the applicant’s contention that his combat related psychiatric problems impaired his ability to service. However, there is no evidence of record, and the applicant has provided no evidence, to support this contention.

5. The applicant’s post service achievements/conduct and the seven character reference letters were noted by the Board. However, good post service conduct alone is not a basis for upgrading a discharge. While the applicant’s post service conduct has been positive, it is not sufficient to warrant upgrade of his discharge in view of the seriousness of his offenses.

6. In the absence of evidence to the contrary, it is presumed that the discharge proceedings were in accordance with law and regulations applicable at the time.
Accordingly, the type of discharge directed and the reasons for separation appear to be appropriate.

7. The ADRB denied the applicant’s request for a discharge upgrade in 1974.

8. The applicant has failed to show through the evidence submitted with his application or the evidence of record that the actions taken in his case were in error or unjust.

9. 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.

10. 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

FNE____ MHM____ BJE_____ DENY APPLICATION

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

---

INDEX

CASE ID	AR2001060929
SUFFIX
RECON
DATE BOARDED	20011018
TYPE OF DISCHARGE	(UOTHC)
DATE OF DISCHARGE	19720515
DISCHARGE AUTHORITY	AR 635-206
DISCHARGE REASON	Misconduct due to being convicted by a civil court during his current term of active military service
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	110.0200
2.
3.
4.
5.
6.