MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 1 May 2003
         DOCKET NUMBER: AR2003084991

         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. Luis Almodova		Analyst

The following members, a quorum, were present:

Mr. Thomas B. Redern, III		Chairperson
Ms. Linda D. Simmons		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)

---

APPLICANT REQUESTS: In effect, that his discharge under other than honorable conditions (UOTHC) be upgraded to honorable.

APPLICANT STATES: In effect, that he was on drugs and alcohol. He was shown how to do these while he was in the service. He was clean and sober before he was subjected to these by his peers. He was on drugs and alcohol and did LSD (Lysergic Acid Diethylamide), which caused him to go AWOL (absent without leave) because of not knowing what was happening to him. He wound up in another state and did not know where he was. The LSD, alcohol and other drugs put him in an altered state of mind. He got lost and was afraid to come back for fear of being court-martialed. He was not in his right frame of mind. In his application to the Board, the applicant admits that he did not know that he could fight this (referring to the discharge).

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

The applicant enlisted in the US Army Reserve for 6 years on 22 June 1977. On 5 July 1977 the applicant enlisted in the Regular Army for a period of 3 years with an enlistment option of being trained as a Cannon Crewman, Military Occupational Specialty (MOS), 13B.

He successfully completed one stop unit training at Fort Sill, Oklahoma and was awarded the MOS 13B. He attended basic airborne training at Fort Benning, Georgia, and was awarded the Basic Parachutist Badge. Following this training, he was reassigned to C Company, 1st Battalion, 320th Field Artillery, 82nd Airborne Division at Fort Bragg, North Carolina.

The applicant’s record documents that the highest rank and pay grade he held on active duty was Private First Class, E-3.

On 12 September 1978, the applicant accepted nonjudicial punishment under the provisions of Article 15, UCMJ, for failure to go at the time prescribed to his appointed place of duty, Battery Formation at 0630 and 0940 hours, on 5 September 1978. The punishment imposed consisted of a reduction to the rank and pay grade, Private, E-1 (suspended until 11 December 1978), forfeiture of $50 and 14 days extra duties. The applicant did not appeal the punishment.

On 26 February 1979, his commander recommended that the applicant be barred from reenlistment. In addition to the above Article 15, the commander cited 6 counseling statements as indicators of untrainability or unsuitability. These were as follows: 28 April 1978, failure to prepare for a TA-50 inspection

---

as well as a failure to repair at 1100 hours on the same date; 1 May 1978, leaving room key locked in room over the weekend of 28 April 1978 through 1 May 1978 and for being unprepared to go to the LAW (Light Anti-tank Weapon) Range on 1 May 1978; 27 November 1978 failure to repair at 0645 hours, on the same date; 5 February 1979, failure to repair at 0645 hours, on the same date; 20 February 1979, failure to clean billets and latrine prior to first call; and 20 February 1979, disregard for instructions of an NCO (noncommissioned officer) to report to extra training. The 82nd Airborne Division Artillery Commander approved the bar to reenlistment on 21 March 1979.

On 3 July 1979, the applicant accepted nonjudicial punishment under the provisions of Article 15, of the UCMJ, for absenting himself from his unit on
5 June 1979 and remaining absent until 3 July 1979. The punishment imposed consisted of a reduction to the rank and pay grade, Private, E-1 and extra duties for 30 days. The applicant did not appeal the punishment.

On 12 July 1979, the unit commander advised the applicant of his contemplated action to initiate his separation under the provisions of chapter 14, Army Regulation (AR) 635-200 for frequent incidents of a discreditable nature with civil and military authorities.

On 12 July 1979, the unit commander initiated action to separate the applicant from the service under the provisions of chapter 14, AR 635-200 for frequent incidents of a discreditable nature with civil and military authorities. The applicant's unit commander asked that rehabilitative transfer be waived.

On 16 July 1979, the applicant sought assistance of legal counsel. The applicant waived consideration of his case by and personal appearance before a board of officers. The applicant elected not to make a statement in his own behalf

The applicant's chain of command was unanimous in recommending approval of the applicant's separation from the Army. On 27 July 1979, the approval authority, a major general, approved the applicant's discharge under the provision of Army Regulation 635-200, paragraph 14-33 and recommended that he be furnished an Under Other Than Honorable Conditions Discharge Certificate, DD Form 794A.

On 3 August 1979, the applicant was discharged under the provisions of chapter 14, AR 635-200, by reason of misconduct-frequent incidents of a discreditable nature with civil and military authorities. He was credited with 2 years and 1 day active military service, and with 28 days lost due to AWOL.

---

There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 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 members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion or absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. Paragraph 14-33b(1) provides for the separation of enlisted personnel who are involved in frequent incidents of a discreditable nature with civil or military authorities.

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, 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 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. The evidence of record does not support the applicant’s contention that he was on drugs and alcohol and that these were the proximate cause of his having gone AWOL. The record shows that the applicant accepted 2 Article 15s and was barred from reenlistment for violation of a variety of rules, regulations, policies and procedures. As such, the quality of his service was not consistent with the Army’s standards for acceptable personal conduct and performance of duty by military personnel.

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

__tbr___ __lds___ __jtm___ DENY APPLICATION

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

---

INDEX

CASE ID	AR2003084991
SUFFIX
RECON
DATE BOARDED	20030501
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	19790803
DISCHARGE AUTHORITY	AR 635-200, Chapter 14
DISCHARGE REASON	A60.00
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	144.0000
2.	144.0133
3.	144.5100
4.
5.
6.