MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 20 August 2002
         DOCKET NUMBER: AR2002069888

         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. Rosa M. Chandler		Analyst

The following members, a quorum, were present:

Ms. Melinda M. Darby		Chairperson
Mr. Roger W. Able		Member
Mr. Curtis L. Greenway		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 undesirable discharge (UD) be upgraded to a fully honorable discharge.

APPLICANT STATES: In a letter to the Board, dated 22 August 2001, that he has turned his life around since being separated from the military. He is currently a Deputy Sheriff with the Grant County (Arkansas) Sheriff's Department. He has worked in law enforcement for the past 13 years and he participates in various community activities and programs, speaking to children about the pressures and effects of drugs and alcohol. He also states that he needs Department of Veterans Affairs (DVA) medical benefits. In support of his application, he submits a copy of his DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) issued on 9 November 1970 and on 5 May 1972, a character reference letter from a State Judge, a character reference letter from a State Legislator, and a character reference letter from a retired State Judge.

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

He was born on 4 June 1954 and enlisted in the Regular Army (RA) for 3 years on 15 September 1970. He was separated on 9 November 1970 by reason of minority. On 9 June 1971, he again enlisted in the RA for a period of 3 years. He completed basic combat training and advanced individual training and he was awarded military occupational specialty (MOS) 11H (Indirect Fire Crewman). On 27 December 1971, he was assigned to Fort Ord, California.

On 4 February 1972, the applicant informed his chain of command that he had been a heroin user since age 13 and he asked for help. On 11 February 1972, he was enrolled in the Drug Amnesty Program. On 12 February 1972, he quit the program stating that he did not like the counselors and that he would "kick the [heroin] habit himself."

On 28 February 1972, nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), was imposed against the applicant for twice failing to go to his appointed place of duty at the time prescribed on 4 February 1972 and on 7 February 1972. His punishment included forfeiture of $75.00 pay per month for 1 month and 14 days of extra duty and restriction.

On 10 March 1972, the applicant underwent a physical evaluation that determined he was qualified for separation.

On 13 March 1972, summary court-martial charges were preferred against the applicant for wrongfully using a habit-forming narcotic drug (heroin) and for willfully and maliciously setting fire to two buildings the property of the US Government. The buildings were valued at $6,000 and $10,000. He was also charged with willfully and maliciously attempting to set fire to a third building by deliberately overturning a 55-gallon barrel containing about 35 gallons of fuel next to the building and stating that he was about to burn down the building. All three buildings were located at Hunter Liggett Military Reservation, Jolon, California and all three incidents occurred on 27 February 1972.

On 15 March 1972, the applicant's commander recommend that he be separated prior to the expiration of his term of service under the provisions of Army Regulation 635-212, due to unfitness, with a UD. He also recommended that further rehabilitative efforts be waived. He cited as the reason for the recommendation the applicant's recurring offenses against the US Army and the use of drugs.

On 21 March 1972, the applicant authenticated a statement in which he acknowledged that he had consulted with legal counsel and he acknowledged that he had been advised of the basis for the contemplated action to separate him under the provisions of Army Regulation 635-212, for unfitness. He further acknowledged that he understood the effects of a UD, and that he would be ineligible to receive veteran's benefits. He also waived further representation by legal counsel and a personal appearance before a board of officers. He did not submit a statement in his own behalf.

On an unknown date, the battalion commander recommended separation with a UD. On 3 April 1972, the brigade commander recommended separation with a UD. The brigade commander cited the applicant's admission that drug abuse had contributed to his decline as a soldier and aggravated his tendencies toward destruction of government property. He was caught setting fire to material in an Army building and he admitted to using heroin prior to the offense. He was also suspected of being involved in two other incidents of attempted arson on the same date. Therefore, the brigade commander believed the applicant's propensity towards drug abuse and the destruction of property indicated that further retention would constitute an undue hazard to the unit and the Army.

On 4 April 1972, the applicant underwent a mental status evaluation that determined he met retention standards. He was determined to be mentally responsible and to be able to distinguish right from wrong and to adhere to the right. He was also determined to have the mental capacity to understand and participate in board proceedings.

On 11 April 1972, competent authority waived further rehabilitation, approved the recommendation, and directed that the applicant be separated under the provisions of Army Regulation 635-212, for unfitness, with a UD.

On 5 May 1972, the applicant was discharged under the provisions of Army Regulation 635-212, for unfitness, with a UD. He had completed 10 months and 27 days of active military service and he had no recorded lost time. Item 16c (Date of Entry) on his DD Form 214 contains an administrative error. His enlistment date is shown as 9 July 1971 vice 9 June 1971; however, his total service is properly calculated.

There is no evidence that the applicant ever applied to the Army Discharge Review Board for review of his discharge under that board's 15-year statute of limitations.

Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel and provided, in pertinent part, that members involved in the unauthorized use or possession of habit forming narcotic drugs or marijuana were subject to separation for unfitness. A UD was normally considered appropriate.

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. 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.

2. The applicant's administrative separation was accomplished in compliance with applicable regulations, then in effect, with no indication of procedural errors which would have jeopardized his rights.

3. The quality of the applicant's service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. His service record fully supports both the reason for discharge and the characterization of his service. The applicant has provided no evidence to the contrary.

4. The applicant underwent both a mental status and a medical examination prior to being separated and he was determined to be fully qualified for separation. He had no service-connected illnesses, injuries, or disabilities.

5. The Board congratulates the applicant on his achievements since departing the Army. However, the Board does not grant relief based solely on post service conduct or solely for the purpose of gaining veteran's benefits.

6. Additionally, the applicant may request that this Board correct Item 16c on his DD 214 to show that he enlisted in the RA on 9 June 1971 vice 9 July 1971.

7. 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

__mmd___ __rwa___ __clg___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002069888
SUFFIX
RECON
DATE BOARDED	20020820
TYPE OF DISCHARGE	(UD)
DATE OF DISCHARGE	19720505
DISCHARGE AUTHORITY	AR635-212
DISCHARGE REASON	A51.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	144.5000
2.
3.
4.
5.
6.