MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 02 MAY 2002
         DOCKET NUMBER: AR2002068466

         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. Deborah L. Brantley		Senior Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Walter T. Morrison		Member
Mr. Christopher J. Prosser		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 under other than honorable conditions discharge be upgraded.

APPLICANT STATES: In effect, that he began using heroin while in the military and "was immediately addicted to this drug." He states that since leaving the military he has received treatment and has remained drug and alcohol free for 10 years. He states, in effect, that he was seen talking with a black soldier and was told by a noncommissioned officer (NCO) not to associate with black soldiers. He contends that after reporting the incident he was "belittled and treated as an outcast." He states that subsequent to that incident he was apprehended by the military police and charged with possession of marijuana and leaving the scene of an accident, which he states he knew nothing about. He was court-martialed and sent to the retraining brigade at Fort Riley. While there he was forced to accept being recycled for additional training or accept a discharge. He chose to be recycled. He states he was ultimately returned to duty at Fort Belvoir, Virginia and because of marital problems his spouse complained to his commander that she was not receiving support payments. When this proved false, his spouse then accused him of taking the money he was sending to her. The applicant states that his commander said he could face a court-martial. While waiting to find out if he was going to be court-martialed he attended a party and unknowingly ingested heroin and "was addicted immediately." He states that he began to use heroin on a daily basis, was unsure of his military future, became frightened and departed AWOL (absent without leave).

The applicant admits that he did not make wise and accurate choices, but has now used his addiction to help others. He states he entered an alcohol and drug rehabilitation center in 1994 and now hopes to secure his high school equivalency diploma and a bachelor's degree in human service so that he can eventually become a "Credentialed Alcohol Substance Abuse Counselor" so that he can serve the needs of fellow veterans and soldiers at VA hospitals.

In addition to his self-authored statement, the applicant submits three letters from fellow co-workers attesting to his reliability, commitment and contributions as a member of the DAYTOP staff. One of the support letters also notes the applicant is a good family man who has taken an active role in raising his children.

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

He enlisted and entered active duty on 30 January 1980, at the age of 17, with a GT (general technical) score of 94 and 10 years of formal education. He





successfully completed basic and advanced individual training prior to being assigned to Fort Benning, Georgia for airborne training. He was ultimately dismissed from airborne and permanently disqualified from any further airborne training. His records note that he was not adaptable to airborne training because of lack of motivation.

The applicant was then assigned duties, in July 1980, as an armorer at Fort Benning. He was promoted to pay grade E-3 in January 1981.

His records indicate he was AWOL for two days in February 1981, but there is no indication, in available records that any disciplinary action was taken.

In April 1981 the applicant was convicted by a special court-martial of possession of 4.6 grams (more or less) of marijuana and of leaving the scene of an accident. The applicant had pled guilty to the possession charge but not to the charge of leaving the scene of an accident. His sentence included reduction to pay grade E-1, forfeiture, and 3 months confinement.

The applicant was confined at Fort Riley, Kansas from 15 April 1981 through
28 June 1981 and was then assigned as a "trainee" at the Retraining Brigade. Other than one UCMJ (uniform code of military justice) action, no other information concerning his conduct while at Fort Riley was not in records available to the Board. The one UCMJ action indicates the applicant was punished under Article 15 of the UCMJ in July 1981 for disobeying an order from his NCO. The applicant did not appeal the action.

The applicant was restored to duty at Fort Belvoir, Virginia in September 1981 and in January 1982 was promoted to pay grade E-2.

On 2 April 1982 the applicant failed to return from ordinary leave and was reported as AWOL. He was dropped from the rolls of the Army on 2 May 1982. The applicant surrendered to military authorities at Fort Hamilton, New York on
7 February 1988.

When charges were preferred, the applicant consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial. His request acknowledged he understood the nature and consequences of the under other than honorable conditions discharge which he might receive. He indicated he understood he could be denied some or all veterans' benefits as






a result of his discharge and that he may be deprived of rights and benefits as a veteran under both Federal and State law. In a statement submitted on his own behalf, he indicated that he was having marital problems, his spouse was making accusations against him which his commander said could lead to a court-martial, and he departed AWOL because he was frightened.

His request was approved, and on 11 March 1988 the applicant was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service in lieu of trial by court-martial. At the time of his separation, the applicant had approximately 2 years of active Federal service and more than 2000 days of lost time due to AWOL, confinement, and excess leave.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A discharge under other than honorable conditions is normally considered appropriate.

On 30 January 2002 the Army Discharge Review Board unanimously denied the applicant's petition to upgrade his discharge.

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 applicant has submitted neither probative evidence nor a convincing argument in support of his request. His contention that his use of drugs or concern regarding a potential court-martial somehow justified or excused is behavior is without foundation.

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 this requirement.

3. While the applicant’s contention that he, in effect, became a productive member of society and a good family man has been noted, it does not outweigh





the seriousness of his conduct while in the military and does not provide an adequate basis upon which the Board would grant relief.

4. 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 __ __WTM__ __CJP__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002068466
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020502
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.00
2.
3.
4.
5.
6.