MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 14 August 2003
         DOCKET NUMBER: AR2002081981

         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
Mrs. Carolyn G. Wade		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor, Jr.		Chairperson
Mr. James E. Anderholm		Member
Ms. Linda M. Barker		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 be upgraded to an honorable discharge.

APPLICANT STATES: In effect, that he had tried to join the Army on many occasions prior to his 19th birthday, but was always told he was not eligible; however, he did not give up and was finally allowed to join the Army. He states he was introduced to drugs when his friend and a drill sergeant offered him marijuana. He states that he cannot remember when he was introduced to other drugs or by whom, but it was about his 4th or 5th week of basic training when he began using acid. He states that he was caught smoking marijuana; that he was placed in rehabilitation for using drugs, but tested positive at each testing and was returned to his company. He states that he was transferred from an infantry unit to a cavalry unit and subsequently assigned to special services as a lifeguard. He states that he was now smoking "pot" and taking pills everyday, that he had no money to support his drug habit, and that when he had a chance to earn extra money he took it. He states that he worked as a roofer until he got in trouble with drugs and had to appear in civilian court. He states that the military police picked him up from civilian court and returned him to his unit commander who informed him that he would be court-martialed. He states that the next day he departed his unit AWOL for the second time. He states he turned himself in a few months later and was placed in the stockade. He states he was unable to get drugs in the stockade; that he was going crazy and wanted out of the stockade; and that when he was offered an undesirable discharge he took it. He states he continued to smoke marijuana and 6 months later he joined the Navy. He states he served in the Navy for about 1 year without any trouble until he was caught with marijuana coming through the gate. He states he was discharged from the Navy with an undesirable discharge. He states he has 1 year, 3 months, and 15 days of active military service in the Army and 8 months and 8 days in the Navy. He states that he has overcome his drug problem, has not been in any trouble, is a licensed practical nurse working mostly with Alzheimer patients. He states that he has matured, that he wishes he had made wiser choices in his youth, and that he is afraid that his past mistakes will cost his son a security clearance. The applicant submitted a 6-page letter in his own behalf in which he explains why he went AWOL (absent without leave), a copy of his DD Form 214 (Report of Separation from the Army), background checks from the state, city, and county police, military test report from the Armed Forces Institute, a copy of a report of survey, membership cards reflecting the different organizations he is a member of, and several letters or reference attesting to his character.

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

He enlisted in the Regular Army on 30 June 1972 for a period of 4 years, the cash bonus enlistment option, and assignment to Fort Knox, Kentucky. Following completion of all required military training, the applicant was awarded military occupational specialty (MOS) 11B, Light Weapons Infantryman and permanently assigned to Fort Knox.

On 1 February 1973, the applicant accepted nonjudicial punishment (NJP) for wrongfully possessing two ounces, more or less, of marijuana and unlawfully carrying a concealed weapon. His punishment consisted of forfeiture of $100.00 pay per month for 2 months.

On 11 June 1973, the applicant accepted NJP for failing to go at the time prescribed to his appointed place of duty. His punishment consisted of forfeiture of $50.00 pay per month for 1 month and 7 days’ extra duty.

On 3 August 1973, the applicant departed his unit AWOL. On 10 September 1973, a report of survey found the applicant liable of simple negligence in the amount of $171.34 for missing military gear. On 18 September 1973, the applicant was apprehended by civil authorities and returned to military control.

On 19 September 1973, the applicant once again departed his unit AWOL and remained absent until 13 November 1973, when he surrendered to his unit and was confined to the post stockade.

The specific facts concerning the applicant’s separation from the Army are not in the record; however, his DD Form 214 shows he was discharged on 15 January 1974 under the provisions of chapter 10, paragraph 10-1, Army Regulation 635-200 for the good of the service. His DD Form 214 shows he had 1 year, 3 months, and 4 days of creditable military service and 104 days of lost time.

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. However, at the time of the applicant's separation, the regulation provided for the issuance of an undesirable 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 Board acknowledges the applicant's successful transition to civilian life and noted the many accomplishments outlined in his application and/or in the documents with his application. The letters attesting to his good character, post-service adjustment, and conduct are noted, but they are insufficient as the sole basis for relief because they do not appear to outweigh the repeated misconduct that led to the applicant’s separation. Additionally, the Board does not upgrade discharges based upon how the current discharge will affect someone else's job opportunities.

2. The evidence of record shows the applicant was discharged under the provisions of Chapter 10, AR 635-200, for the good of the service in lieu of trial by court-martial. In connection with such a discharge, the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge. Procedurally, the applicant was required to consult with defense counsel and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial. In doing so, the applicant admitted guilt to the stipulated offenses under the UCMJ. In the absence of information to the contrary, the Board was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. It also noted that at the time the applicant was discharged the characterization of service for this type of discharge was an undesirable discharge and that the applicant would have been aware of that prior to requesting discharge.

3. 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.

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

__rvo___ __jea___ __lmb___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002081981
SUFFIX
RECON
DATE BOARDED	20030814
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	19740115
DISCHARGE AUTHORITY	AR 635-200, Chapter 10
DISCHARGE REASON	A70.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	100.0200
2.
3.
4.
5.
6.