MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            24 March 1999                  
	DOCKET NUMBER:   AR1999022548

	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. Loren G. Harrell		Director	
	Mr. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. James E. Vick		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. Allen L. Raub		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:  That the narrative reason for separation, misconduct, be removed from his DD Form 214 (Certificate of Release or Discharge from Active Duty).  

APPLICANT STATES:  The he is grateful for having his discharge upgraded to honorable; however, he cannot be hired for a job at the federal prison in Jesup, Georgia, until the reason for his discharge is removed.  

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

The applicant enlisted in the Army on 28 August 1986, and remained on continuous active duty until his discharge in 1995.  The applicant has served in Germany, Saudi Arabia, and Korea, among other locations, and has received numerous awards, including the Army Achievement Medal, the Army Good Conduct Medal, the Southwest Asia Service Medal with two bronze service stars, and the NCO Professional Development Ribbon, among others.  He was promoted to Sergeant E-5 on 1 June 1992.  

On 14 February 1995 the applicant was counseled for testing positive for using marijuana.

On 28 February 1995 the applicant received nonjudicial punishment for wrongful use of marijuana.  He was reduced to pay grade E-4.

A 28 April 1995 report of mental status evaluation indicates that the applicant was mentally responsible, had the mental capacity to understand and participate in proceedings, and met the standards for retention in the Army.  The applicant was psychiatrically cleared for any administrative action deemed necessary.

A 16 May 1995 report of medical examination indicates that the applicant was medically qualified for separation with a physical profile serial of 1 1 1 1 1 1.  In the report of medical history he furnished for the examination, the applicant stated that he was in good health. 

On 24 May 1995 the applicant was counseled for not being at formation.

On 19 June 1995 the applicant’s commanding officer notified the applicant that he, the commanding officer, was recommending that the applicant be barred from reenlistment.  The recommendation was approved on 20 June 1995.  The applicant did not appeal.

On 21 June 1995 the applicant’s commanding officer counseled the applicant and notified him that he was recommending that the applicant be separated from active duty under the provisions of Army Regulation 635-200, paragraph 14-12c. 

On 14 July 1995 the applicant’s commanding officer notified the applicant that he was initiating action to separate him for commission of a serious offense, wrongful use of marijuana.  The applicant consulted with counsel, stated that he understood the basis for the contemplated action, its effects, and the rights available to him.  He unconditionally waived consideration of his case by an administrative separation board, waived his right to counsel, and declined to submit statements in his own behalf.  He stated that he understood the nature and consequences of the general discharge that he might receive.

The applicant’s commanding officer recommended to the separation authority that the applicant be separated, and that the applicant receive a general discharge.  On 21 July 1995 the separation authority approved that recommendation.

The applicant was discharged on 2 August 1995 under the provisions of Army Regulation 635-200, paragraph 14-12c(2), for misconduct.  His discharge was under honorable conditions (general).  He had 8 years, 11 months, and 5 days of service.

On 11 June 1998 the Army Discharge Review Board, in a majority decision, approved the applicant’s request to upgrade his general discharge to honorable, stating that his discharge was too harsh because his quality of service did not warrant the granting of a general discharge.  The board, in an unanimous decision, stated that the reason for his discharge should not be changed.

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.  Paragraph 14-12c(2) states that abuse of illegal drugs is serious misconduct and that first-time drug offenders in grades E5-E9 will be processed for separation after a drug offense.  Paragraph 14-3 states that a discharge under other than honorable conditions is normally appropriate for a soldier discharged for misconduct.  However, the separation authority may direct a general discharge if such is merited by the soldier’s overall record. 

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The applicant declined counsel, waived his right to a hearing before a board of officers, and acknowledged that he understood the effects of a general discharge.  The applicant had nearly nine years of service and had advanced to the rank of Sergeant E-5.  His service up to the discovery of his marijuana use was commendable.  However, by using drugs, he violated the trust placed in him as an NCO.  This Board considers the character of his discharge appropriate, and notes that the applicant could have received a discharge under other than honorable conditions.
 
2.  Nonetheless, the Army Discharge Review Board has upgraded his discharge to honorable.  However, that board declined to change the reason for his discharge.  And this Board concurs.  The underlying reason for his discharge, misconduct, yet holds true, and the applicant has not provided any probative evidence nor a convincing argument in support of his request to change that reason.  While the Board is empathetic, the applicant's employment problems are not sufficiently mitigating to warrant removing the reason for his discharge on his separation document.   

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 the aforementioned 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:

________  __rwa___  ___alr__  GRANT

________  ________  ________  GRANT FORMAL HEARING

__jev___  ________  ________  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999022548	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990324	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1. 110.00		
2.		
3.		
4.		
5.		
6.