MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 17 July 2003
         DOCKET NUMBER: AR2002083146

         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. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Ms. Joann Langston		Chairperson
Ms. Regan K. Smith		Member
Mr. John T. Meixell		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 honorable.

APPLICANT STATES: That aside from his drug use his service record was satisfactory. He also contends that his undesirable discharge is no longer required for the same conduct.

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

The applicant enlisted on 31 August 1973 for a period of 3 years. He successfully completed basic combat training and advanced individual training and was transferred to Korea for duty as a recovery specialist.

On 3 June 1974, nonjudicial punishment was imposed against the applicant for using marijuana. His punishment consisted of a reduction to E-2 (suspended for 90 days), a forfeiture of pay and restriction.

On 24 October 1974, nonjudicial punishment was imposed against the applicant for possession of marijuana. His punishment consisted of restriction (suspended for 15 days) and a forfeiture of pay.

On 14 November 1974, nonjudicial punishment was imposed against the applicant for being incapacitated for duty as a result of indulgence in intoxicating agents. His punishment consisted of a reduction to E-1, restriction and extra duty.

On 5 November 1974, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 13, for unfitness due to drug abuse.

On 5 November 1974, the applicant's unit commander initiated action to separate him under the provisions of Army Regulation 635-200, chapter 13, for unfitness due to drug abuse (unauthorized use or possession of marijuana). He cited that the applicant had been counseled numerous times on use and possession of marijuana and that he had received three Article 15's.

On 13 December 1974, after consulting with counsel, the applicant waived consideration of his case by a board of officers, representation by counsel and elected not to submit a statement on his behalf.

On 9 December 1974, an intermediate commander recommended that the applicant be discharged for unfitness.

On 16 December 1974, an intermediate commander recommended that the applicant be discharged for unfitness under the provisions of Army Regulation 635-200, for unfitness for drug abuse.

On 24 December 1974, the separation authority approved the recommendation for separation under the provisions of Army Regulation 635-200, chapter 13, for unfitness and directed that the applicant be furnished an undesirable discharge.

On 13 January 1975, the applicant was discharged with an undesirable discharge under the provisions of Army Regulation 635-200, chapter 13, paragraph 13-5b(3), for unsuitability-apathy, defective attitude or inability to expend effort constructively.

There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel for unfitness or unsuitability. Chapter 13, paragraph 13-5b(3) of Army Regulation 635-200 provides for discharge due to unsuitability because of apathy, defective attitudes, and inability to expend effort constructively. The regulation states that when separation for unsuitability was warranted an honorable or general discharge was issued as warranted by his military record.

Paragraph 13-5a(3) of Army Regulation 635-200, in effect at the time, provided for discharge due to drug abuse because of drug dependence, or the unauthorized use, sale, possession, or transfer of any controlled substance, or the introduction of such a controlled substance onto any Army installation or other Government property under Army jurisdiction. This regulation also states that an individual separated by reason of unfitness will normally be furnished an undesirable discharge certificate.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action will 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 appropriate for a soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the soldier’s overall record.



Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. Whenever there is doubt, it is to be resolved in favor of the individual.

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 applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3. The evidence of record does not support the applicant's contention that under current standards he would not receive the type of discharge he did. The current governing regulation states that an individual separated by reason of misconduct for commission of a serious offense (abuse of illegal drugs) would normally be furnished a discharge under other than honorable conditions.

4. The Board reviewed the applicant's record of service which included three nonjudicial punishments and determined that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, the applicant is not entitled to an honorable discharge.

5. The applicant has failed to convince the Board through the evidence submitted or the evidence of record that his discharge was unjust and should be upgraded.

6. The Board notes that the evidence of record clearly shows that the applicant was discharged for unfitness due to drug abuse. However, item 9c (Authority and Reason) on the applicant's DD Form 214 erroneously shows that he was discharged for unsuitability-apathy, defective attitudes, and inability to expend effort constructively. The applicant may reapply to this Board to have his DD Form 214 amended to show the correct authority and reason.

7. 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.
8. 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

JL_____ RKS_____ JTM_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002083146
SUFFIX
RECON
DATE BOARDED	20030717
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	19750113
DISCHARGE AUTHORITY	AR 635-200 Chapter 13
DISCHARGE REASON	Unsuitability-apathy, defective attitude or inability to expend effort constructively
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.0200
2.
3.
4.
5.
6.