MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:



                  BOARD DATE: 06 NOVEMBER 2003
                  DOCKET NUMBER: AR2003086974

         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. Deborah L. Brantley		Senior Analyst

The following members, a quorum, were present:

Mr. Stanley Kelley		Chairperson
Mr. Raymond J. Wagner		Member
Ms. Mae M. Bullock		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: In effect, that his undesirable discharge be upgraded to a general discharge.

APPLICANT STATES: That he was young and did not understand the ramifications of his bad discharge.

He states, in a self-authored statement, that he enlisted in the Army and completed basic training. He states that while on leave he lost all of his records and was apprehended in Florida and ultimately returned to military control at Fort Gordon, Georgia. He states that he was only paid $10.00 per month because he had no finance records. He states that at Christmas time he was given a bus ticket to go home and told the sergeant that he could not support his family on $10.00 per month. He did not return to the military and instead got a job to support his family. He states that eventually the military came for him, even though he was not trying to hide and returned him to a PCF (personnel control facility). The applicant states that he was permitted to leave on pass, but continued to receive only $10.00 pay. Following one of his pass periods he did not return and returned to the job he had held previously. He states that the military again came for him.

The applicant states that he appeared before a board of officers and was told that he would receive a “General Discharge under other than honorable conditions and [an] Undesirable Discharge.”

Just prior to his separation he states that he underwent a physical examination and was found to have an ulcer. He states that he was told that he would receive a 20 percent disability rating from the government, but is still waiting to hear from the Department of Veterans Affairs.

The applicant states that his choice was between caring for his wife and children or the military and that he believes that he made the right choice. He states that he loves his country and would give his life for his country.

Other than his self-authored statement, the applicant submits no evidence in support of his request.

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

In 1975 the Army Board for Correction of Military Records denied the applicant's petition to have his discharge upgraded. The Board's proceedings in that 1975 case were not in records available to the Board. In the absence of the original Board proceedings, this Board has accepted the current application and elected to do a "De Novo" review in order to provide the applicant with a clear understanding why his discharge has not been upgraded.

The applicant enlisted and entered active duty on 16 January 1973 at the age of 18. He successfully completed basic combat training and in March 1973 was reassigned to Fort Campbell, Kentucky, for advanced individual training.

According to documents contained in his file, the applicant was tried and convicted by a civilian court in Florida on 9 April 1973 for two counts of possession of a dangerous drug. His sentence included 9 months confinement in the county jail.

The applicant’s records indicate that his status was reported as AWOL (absent without leave) between 6 April 1973 and 4 October 1973.

The applicant was attached to Fort Gordon, Georgia, and departed AWOL on
26 November 1973. He returned to military control the following day and then departed AWOL again on 8 January 1974. He was subsequently dropped from the rolls of the Army.

He was apprehended by civilian authorities on 6 March 1974 and returned to military control on 10 March 1974. He was convicted by a special court-martial for his two periods of AWOL (26-27 November 1973 and 8 January 1974 through 6 March 1974).

Following the applicant’s court-martial conviction, he was assigned to the Special Processing Unit at the Personnel Control Facility at Fort Knox, Kentucky, and was carried in a prisoner status between 11 March and 2 May 1974.

He was seen by medical personnel in mid-March with a complaint of “ulcers X 4-5 weeks.” He also complained of epigastria pain and constipation. Subsequent blood tests were all within normal limits. However, the applicant did admit to “IV drug abuse recently.”

His separation physical examination, conducted on 19 March 1974, found him medically qualified for separation with a physical profile of 1-1-1-1-1-1. There was no diagnosis of ulcers on his separation physical examination or in medical records available to the Board, only the applicant’s complaint of ulcers was recorded.

A mental status evaluation, conducted in April 1974, found the applicant fully oriented, his thought process clear and normal, and that the applicant was mentally responsible and able to understand and participate in his proceedings.

The applicant again departed AWOL on 8 July 1974. He was apprehended by civilian authorities and returned to military control on 13 September 1974.

On 16 September 1974 the applicant’s commander initiated actions to administratively separate the applicant from active duty for misconduct as a result of his March 1973 civil conviction.

The applicant acknowledged receipt of the proposed separation action, consulted with counsel, and waived his attendant rights. In his acknowledgement statement he indicated that he had been advised by his consulting counsel of the basis for the contemplated action to accomplish his separation based on his civil conviction and that he understood the provisions of Army Regulation 635-206, and its effects, of the rights available to him; and the effect of any action taken by him in waiving his rights.

He also acknowledged that he understood that if he were issued an undesirable discharge under conditions other than honorable, that he might be ineligible for many or all benefits as a veteran and that he could expect to encounter substantial prejudice in civilian life.

The commander’s recommendation was approved and on 11 October 1974 the applicant was discharged under the provisions of Army Regulation 635-206 for misconduct (civil conviction). The applicant was issued an undesirable discharge certificate and authenticated his separation document.

At the time of the applicant’s separation, he had 8 months and 26 days of creditable service and more than 360 days of lost time.

The applicant’s records contain a September 1974 record of emergency data card, which indicates that the applicant was not married and had no children. His Department of the Army Form 20 (Enlisted Qualification Record) also notes that the applicant was single, with no dependents. He authenticated the information on his Department of the Army Form 20 on 8 May 1974.

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 maximum punishment under the UCMJ for possession of a control substance is up to 5 years confinement.

The applicant’s March 1975 petition to the Army Discharge Review Board was denied.

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 evidence available to the Board indicates that he was discharged for misconduct as a result of his civil conviction.

2. His argument that he had to choose between supporting his family or the military is not supported by any evidence in available records, or provided by the applicant.

3. The applicant’s contention that he was young, and did not fully understand the basis for his separation, is not supported by any evidence submitted by him, or contained in records available to the Board. The evidence that is available indicates that the applicant consulted with counsel and waived his attendant rights.

4. The applicant has submitted neither probative evidence nor a convincing argument in support of his request. His contention that his age and lack of understanding somehow justified or excused his behavior is without foundation. His successful completion of basic combat training clearly indicated that the applicant was capable of honorable service.

5. 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.

6. 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

__KS ___ __RJW __ __MMB__ DENY APPLICATION

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

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INDEX

CASE ID	AR2003086974
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20031106
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.00
2.
3.
4.
5.
6.