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ARMY | BCMR | CY2002 | 2002073967C070403
Original file (2002073967C070403.rtf) Auto-classification: Denied
MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 14 January 2003
         DOCKET NUMBER: AR2002073967

         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
Mr. G. E. Vandenberg Analyst


The following members, a quorum, were present:

Ms. Margaret K. Patterson Chairperson
Ms. Jennifer L. Prater Member
Ms. Mae M. Bullock 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 be upgraded.

APPLICANT STATES: That he has suffered the consequences and the stigma long enough. He states that he is homeless and that he has been rated eligible for VA (Department of Veterans Affairs) benefits.

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

The applicant entered active duty on 30 June 1975 and completed basic combat training and advanced individual training without reported incident.

The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) twice; first, on 15 August 1977, for disrespectful language toward a noncommissioned officer and physical assault of a private and, again, on 24 April 1978 for dereliction of duty.

Court-martial charges were preferred against the applicant for operating a motor vehicle without a valid operator's license, operating an unregistered vehicle on post, possession and sale of heroin, and communicating a threat of injury against a staff sergeant.

On 9 December 1977, a general court-martial found the applicant guilty of operating an unregistered vehicle, possession of heroin and communicating a threat. He was sentenced to confinement for 15 months, forfeiture of all pay and allowances, reduction to pay grade E-1, and to receive a bad conduct discharge.

On 15 February 1978, the court-martial authority approved only a reduced sentence of confinement for 6 months and forfeiture of $265 per month for 6 months.

Effective 7 April 1978, the unexecuted portion of his sentence was suspended until 14 August 1978, unless vacated sooner, and the applicant was returned to duty.

On 20 June 1978, the applicant appeared before a board of officers to determine if he should remain in the service or be administratively separated. The applicant was advised of the reason for this hearing and of his rights under the UCMJ, to have counsel of his own choosing and to cross-examine all witnesses. The applicant acknowledged these rights and remained with his appointed military counsel. During testimony the applicant's command indicated that the applicant had numerous incidents of discreditable nature while in the Retraining Brigade and well as a poor attitude. The applicant continued to aver that he had not attempted to sell any illegal drugs and stated that he was receiving care for depression and insomnia.

The board of officers determined that rehabilitation was impracticable or unlikely to succeed and recommended that the applicant be separated from the service under other than honorable conditions.

The discharge authority approved the recommendation for separation and directed that the applicant be discharged under Army Regulation 635-200, paragraph 14-33b, for misconduct, under other than honorable conditions.

The applicant was discharged on 3 August 1978, under other than honorable conditions. He had 2 years, 9 months, and 5 days of creditable service and 119 days lost due to confinement.

On 23 November 1987, the Army Discharge Review Board (ADRB) reviewed and denied the applicant's request to upgrade his discharge.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. As in effect at that time, paragraph 14-33b establishes policy and prescribes procedures for separating members for a pattern of misconduct including frequent incidents of a discreditable nature with civil or military authorities, an established pattern a pattern of shirking, a pattern of failure to pay just debts, or failure to adequately support dependents. Action was to be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally considered appropriate.

DISCUSSION : Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, and applicable law and regulations, it is concluded:

1. The discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with the applicant's overall record of military service.

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. 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

__MKP___ __JLP___ __MMB DENY APPLICATION




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


INDEX

CASE ID AR2002073967
SUFFIX
RECON
DATE BOARDED 20030114
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION DENY
REVIEW AUTHORITY
ISSUES 1. 144.00
2.
3.
4.
5.
6.


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