MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 28 August 2003
         DOCKET NUMBER: AR2002083030

         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:

Mr. Arthur A. Omartian		Chairperson
Mr. Thomas Lanyi		Member
Mr. Harry B. Oberg		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 discharge be upgraded to general under honorable conditions.

APPLICANT STATES: In effect, he was told that the President stated that any Vietnam veteran discharged for drug related offenses would get their discharge changed. He also contends that his discharge is too harsh.

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

The applicant entered active duty on 10 September 1971. He completed basic combat training and advanced individual training with award of the military occupational specialty (MOS) 64C (Motor Transport Operator). In December 1972 he converted to 61C (Marine Engineman).

The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) on 19 March 1973, for failure to obey a General Order; on 19 April 1973, for being AWOL (absent without leave) from 6 April through 18 April 1973; and on 26 June 1974, for being AWOL from 19 June through 26 June 1974.

A special court-martial found the applicant guilty of being AWOL 13 June through 14 June 1973 and 15 June through 1 July 1973.

On 11 May 1973, while stationed on Okinawa, the applicant’s base quarters were searched as a part of a joint Japanese-American narcotics investigation. The applicant was found to be in possession of 11 grams of heroin and was arrested. The Government of Japan requested and retained jurisdiction of the case. The applicant appeared in court and pled guilty to illegal drug possession. On 26 October 1973 he was sentenced to confinement for 1 year and payment of all court costs. The sentence became final on 9 November 1973 and the applicant commenced his confinement in a Japanese prison on 12 November 1973.

During his trial it was noted that the applicant had been in two different drug rehabilitation programs. Due to regulations in affect at the time the specifics of this treatment is not of record.

The applicant was notified that his command proposed to discharge him for conviction by a civil court. He exercised his right to have counsel and to appear before a board of officers.

A board of officers was convened, on 4 February 1974, to determine if the applicant should be discharged under the provisions of Army Regulation 635-206 for conviction by a civil court. The board reviewed the applicant’s military service, prior infractions and the nature of the civil conviction and recommended that the applicant be discharged with an Undesirable Discharge.

The separation authority approved the recommendation on 1 July 1974 and directed that the applicant be discharged with an undesirable discharge upon his release from confinement and return to CONUS (continental United States).

The applicant was discharged on 16 July 1974. He had 2 years, 4 months, and 5 days of creditable service with 237 lost days.

The applicant’s records show he had service in Vietnam from 16 December 1972 until his reassignment to Okinawa on 30 June 1973. He was not authorized or awarded any military decorations other than a service medal.

The Army Discharge Review Board reviewed his case and on 9 April 1979 denied relief.

In view of his reference to his drug discharge, the following drug and discharge review programs are noted to have been in effect in the 1970's:

In 1971 Secretary of Defense Laird directed, in what is now known as the Laird Memorandum, that the discharges of personnel who had been discharged solely on the basis of drug use or possession for personal use prior to 7 July 1971 (the date the Army initiated a drug treatment program) be reviewed.

On 4 April 1977 the Department of Defense (DOD) directed the Services to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973. This program, known as the DOD Discharge Review Program (Special) (SDRP) required, in the absence of compelling reasons to the contrary, that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge. Consideration of other factors, including possible personal problems which may have contributed to the acts which led to the discharge, and a record of good citizenship since the time of discharge, would also be considered upon application by the individual.

A second drug related program was initiated in November 1979, under the provisions of the court-imposed program known as the “Giles Decision”. It mandated an honorable discharge where the results of a compelled urinalysis given in connection with a drug treatment program were introduced by the government in the discharge process.
Army Regulation 635-206, then in effect, provided, in pertinent part, that an enlisted member who was convicted by a civilian court of an offense for which the authorized punishment under the UCMJ included confinement of 1 year or more was to be considered for elimination. When such separation was warranted an undesirable discharge was considered appropriate.

The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ. A punitive discharge and confinement for 5 year is authorized for possession of habit-forming drugs under Article 134.

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 applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

2. The applicant does not meet provisions for review or upgrade under any of mandatory drug or discharge review programs in effect in the 1970’s. The cut off date for consideration under Laird predates his discharge and his possession charge was based on actual possession of heroin not a drug rehabilitation urinalysis as required under the Giles Decision.

3. The applicant also does not meet the primary criteria for upgrade under the SDRP as he did not have a complete a normal tour of duty in Vietnam; he was not wounded in action; he did not receive any military decoration other than a service medal, had no previous period of service, nor does his record show 24 months of satisfactory military service prior to discharge.

4. 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.

5. 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.

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

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INDEX

CASE ID	AR2002083030
SUFFIX
RECON
DATE BOARDED	20030828
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	Upgrade discharge
2.
3.
4.
5.
6.