MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 9 September 2003
         DOCKET NUMBER: AR2002081293

         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. Shirley L. Powell		Chairperson
Mr. Walter T. Morrison		Member
Mr. Thomas A. Pagan		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 (UOTHC) discharge be upgraded to that of an honorable discharge.

APPLICANT STATES: In effect, that he was gung ho, had an excellent attitude, and wanted to do whatever was necessary to excel and to be promoted. It was not until after he arrived at Fort Polk, Louisiana, and experienced difficulties with his peers that he began smoking dope and drinking heavily. Both his peers and the sergeants repeatedly harassed him. Following his separation, he lost his wife in a car accident in 1994 and, in 2000, he enrolled an alcohol treatment program and is finally getting his life back together. In support of his request, he submits three letters of character reference that indicate: he has made a tremendous effort to turn his life around; he completed an Alcoholics Anonymous Program and he has been sober for 2 years; and he continues to work hard at replacing the bad things in his life with positive productive changes. He also submits two certificates of competency for completion of automotive courses.

COUNSEL CONTENDS: In essence, that the applicant has sought successful treatment for his problem with alcohol to which he attributes his difficulties and misconduct while in the Army. Counsel states the applicant admitted alcohol and marijuana abuse, but because he expressed no desire for treatment, his chain of command did not refer him for compulsory treatment or admit him to the hospital for treatment. There is no evidence to indicate the applicant was administered a separation physical or mental status evaluation. Counsel recommends the Board take into consideration the applicant was not afforded adequate treatment for his dependency problem prior to being separated.

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

On 30 January 1981, he enlisted in the Delayed Entry Program (DEP). On 14 April 1981, he was discharged from the DEP and he enlisted in the Regular Army for 4 years. Following completion of all required military training, he was awarded military occupational specialty (MOS) 63B, Light Wheel Vehicle and Power Generator Mechanic, and, on 28 September 1981, he was assigned to a unit at Fort Polk with duty in his MOS.

On 5 August 1982, nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, was imposed against the applicant for wrongfully having in his possession some amount of marijuana on 11 July 1982. His punishment included reduction from pay grade E-3 to pay grade E-1, forfeiture of $200.00 pay per month for 2 months, and 30 days in the correctional custody facility.

On 17 September 1982, the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) evaluated the applicant after he admitted that he drank approximately 1 liter of alcohol a week and that he smoked marijuana on a daily basis. He denied alcohol dependency; however, he admitted to deviant behavior, but said he needed to satisfy himself. He expressed a definite desire to be chaptered out of the Army. The ADAPCP determined the applicant's problem appeared to be behavioral and that he would not be receptive to the services of ADAPCP at that time. He did not appear to be alcohol dependent.

On 5 November 1982, the applicant was convicted by a summary court-martial of wrongfully having in his possession some amount of marijuana on 16 September 1982. He was sentenced to the forfeiture of $382.00 pay per month for 1 month and confinement at hard labor for 30 days. The applicant was confined at the United States Army Retraining Brigade (USARB), Fort Riley, Kansas, from
5-28 November 1982.

On 29 November 1982, his sentence was suspended and he was reassigned to Fort Riley in a trainee status. The applicant's performance was poor. The first week, he was rated unsatisfactory due to a lack of motivation. During the second week of training, he was rated unsatisfactory for a security violation. He also had numerous deficiencies during barracks inspections. In December, he was informed that he would be separated if he continued to fail to meet the standard. He failed to respond to counseling, his attitude remained poor and he never displayed the necessary motivation to complete the training.

On 4 January 1983, NJP was imposed against the applicant for disobeying a lawful order on 26 December 1982. His punishment included the forfeiture of $50.00 pay per month for 1 month and 7 days of extra duty and restriction.

On 6 January 1983, the applicant's commander officially notified him that he was being recommended for a UOTHC discharge under the provisions of chapter 14, Army Regulation (AR) 635-200 for a pattern of misconduct. The applicant was advised that the bases for this recommendation were the above misconduct offenses. The applicant was also advised of the rights available to him.

On 7 January 1983, the applicant's commander requested that the requirement for further rehabilitative efforts be waived.

On 12 January 1983, the applicant consulted with legal counsel. He was advised of the nature of the contemplated separation action and its effects. He was also advised of the rights available to him and that he was entitled to have an administrative separation hearing by a board of officers. He waived a personal appearance hearing before a separation board.

On 17 January 1983, the appropriate authority waived further rehabilitative requirements and directed that the applicant be separated with a UOTHC discharge.

The applicant's DD Form 214 (Certificate of Release or Discharge From Active Duty) shows that, on 19 January 1983, he was separated under the provisions of chapter 14, Army Regulation 635-200 for "misconduct-pattern of misconduct" with a UOTHC discharge. He had completed 1 year, 8 months and 12 days of active military service. He also had completed 2 months and 14 days of total prior inactive service and he had 24 days of lost time due to being in military confinement.

On the same date, the applicant waived a medical examination in conjunction with the separation process.

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

AR 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating soldiers for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, to include abuse of alcohol, convictions by civil authorities and desertion or absences without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. Army policy states that a UOTHC discharge is 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 Board found no evidence of arbitrary or capricious actions by the applicant's chain of command. The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors, which would have jeopardized his rights. The UOTHC discharge was appropriate considering the facts of the case.

3. Counsels statement that the applicant was not afforded substance abuse treatment is misleading. In September 1982, the applicant was referred to, and evaluated by, the ADAPCP. Based on his attitude and lack of interest in rehabilitation, he was not placed in the program.

4. The applicant violated the Army's policy not to possess or use illegal drugs and he engaged in behavior that was not in keeping with good military conduct. He knowingly risked his military career and diminished the quality of his service below that meriting an honorable discharge.

5. The applicant waived a medical examination at the time of separation.

6. The Board notes the applicant’s submission outlining his successful accomplishments since separation from active duty. The applicant is commended for his accomplishments; however, these accomplishments do not provide the Board a basis upon which to grant relief.

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

__slp___ __wtm___ __tap___ DENY APPLICATION

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

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INDEX

CASE ID	AR20081293
SUFFIX
RECON
DATE BOARDED	20030909
TYPE OF DISCHARGE	(UOTHC)
DATE OF DISCHARGE	19830119
DISCHARGE AUTHORITY	AR635-200, Chap 14
DISCHARGE REASON	A60.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	144.6000
2.
3.
4.
5.
6.