MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           13 June 2000                  
	DOCKET NUMBER:   AR2000037043

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Ms. Elizabeth Buchanon 		Chairperson	
	Mr. John H. Kern 		Member	
	Ms. Barbara J. Ellis 		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 his separation code be changed on his            DD Form 214.   

APPLICANT STATES:  That limited use information was used in his discharge proceedings.  If he were not discharged, he would have been able to retire.  Since his discharge was upgraded due to illegal use of evidence, his separation code should be changed in order for him to receive severance pay.  

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

The applicant served on active duty for almost 10 years from 1972 until 1982, served in the Army Reserve for four years, and enlisted in the Regular Army for four years on 13 November 1986.  He remained on active duty until his discharge in 1993, and attained the rank of Staff Sergeant.

On 22 February 1993 the applicant received nonjudicial punishment under     Article 15, UCMJ, for wrongful use of cocaine.  The applicant accepted, and elected not to appeal, his punishment.  

On 5 March 1993 the applicant’s commanding officer notified the applicant that he was initiating action to separate the applicant from the Army under the provisions of Army Regulation 635-200, chapter 7, for fraudulent entry, and chapter 14 for misconduct, commission of a serious offense.  That official stated that the reasons for his action was because of the applicant’s use of cocaine, and his making of false official documents upon his enlistment in 1991.  He stated that he was recommending that the applicant receive an under other than honorable discharge.

The applicant consulted with counsel, stated that he understood the basis for the contemplated action, its effects, and the rights available to him.  He voluntarily waived consideration of his case by an administrative separation board contingent upon his receiving a characterization of service or description of separation no less than under honorable conditions.  He declined to submit statements in his own behalf.

On 9 March 1993 the applicant’s commanding officer recommended to the separation authority that the applicant be discharged because of cocaine use, making and signing two false official documents, and fraudulently reenlisting. 
On 25 March 1993 the applicant’s request for a conditional waiver was disapproved and the separation authority appointed a board of officers to determine whether the applicant should be discharged from the Army.

The board met on 21 April 1993.  Testimony during the board proceedings revealed that the applicant tested positive for cocaine during a unit urinalysis test conducted on 7 January 1993.  That testimony also revealed that the applicant had not told the truth when completing his enlistment documents on                  25 November 1991, in that he stated that he had never been arrested, cited, charged or held by law enforcement authorities, and that he had never been convicted of a felony or any other offense.  

In an 18 November 1992 memorandum to the applicant (one of the board’s exhibits) the Central Security Clearance Facility at Fort Meade, Maryland, informed him of its intent to deny him a security clearance.  That memorandum indicated that the applicant had been titled for driving under the influence, driving without a license, and driving without proof of insurance on 2 March 1979; drunk driving on 14 May 1980; and arrested on 16 May 1981 for failure to yield, no proof of insurance, no driver’s permit, and driving under the influence.  It went on to state that he was arrested on 21 August 1982 for failure to yield and driving under the influence; arrested for contempt of court, following too closely, leaving the scene of an accident, and no proof of insurance on 8 April 1985; arrested on 12 December and again on 19 December 1985 for driving under the influence; arrested on 8 April 1986 on a contempt of court warrant.  It stated that he was arrested on 24 January 1987 for driving under the influence and driving on a revoked license; and titled for assault on 18 November 1990.  A                            9 September 1992 interview indicated that the applicant admitted to using marijuana in 1971-1972, and also in 1981 and 1982, but that he omitted his use of marijuana from his National Agency Questionnaire. That document also listed the applicant’s delinquent debts, to include an unsatisfied tax lien, and a judgment concerning one of his debts.  It stated that he had signed a National Agency Questionnaire on 30 November 1990 and failed to list five of his arrests, indicated that he had never used marijuana, and had never been significantly delinquent on debts.
 
The applicant’s commanding officer testified that he initiated separation action against the applicant based on his positive urinalysis as well as the information that he received regarding his security clearance.  He stated that the applicant was in the Army Drug and Alcohol Prevention Control Program (ADAPCP) and his counselor had called him (the commanding officer), telling him that the applicant had admitted that he had used cocaine while he was in the program. 

The applicant testified, stating that he had problems with drugs and alcohol for about 8 years, and had received counseling on and off.  He stated that he took the cocaine around the holidays.  He also stated that he first entered the ADAPCP in 1981, and had been in the program three times.  

The board found that the applicant used cocaine, made and signed a false official document on or about 16 September 1991, fraudulently reenlisted on or about    25 November 1991, and made and signed a false official document (DOD National Agency Questionnaire) on or about 30 December 1991.  The board stated that the applicant was not desirable for further retention in the Army under the provisions of Army Regulation 635-200, Chapter 7, paragraph 7-17, fraudulent entry, and Chapter 14, paragraph 14-12c, commission of a serious offense.  The board recommended that he be discharged under other than honorable conditions.

In a 26 April 1993 memorandum to the separation authority, the applicant’s counsel requested that the applicant receive an honorable discharge, because limited use evidence as defined by Army Regulation 635-85, paragraph 6-4, was introduced into the discharge process, in that the applicant’s commanding officer stated that the applicant’s counselor had informed that official that the applicant had admitted to cocaine use while in the ADAPCP.  Counsel stated that the government was aware that the applicant tested positive during urinalysis testing given in conjunction with his participation in the ADAPCP, and use of the positive results was prohibited by paragraph 6-4a(1) of the Army Regulation 635-85.  The government circumvented that rule, however, by presenting evidence of admissions made by the applicant to his counselor, rather than submitting evidence of positive test results, contradicting the general policy contained in the regulation.

The applicant was discharged under other than honorable conditions for misconduct-commission of a serious offense, under the provisions of Army Regulation 635-200, paragraph 14-12c, on 26 May 1993.  He had over 16 years of active service.

On 23 June 1999 the Army Discharge Review Board noted that the government introduced information into the discharge process revealing that the applicant admitted that he used cocaine while in the ADAPCP, which was limited use information as defined in Army Regulation 600-85, Chapter 6.  Use of that information mandated award of an honorable discharge.  The board directed that the applicant’s characterization of service be changed to honorable and restoration of his rank to Staff Sergeant.  However, the board found that the reason for his discharge was fully supported by the record and voted not to change it.

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 states that soldiers are subject to separation for commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense under the Manual for Courts-Martial.  

Paragraph 7-17 provides for discharge for fraudulent entry, and states in pertinent part, that fraudulent entry is the procurement of an enlistment, reenlistment, or period of active service through any deliberate material misrepresentation, omission, or concealment of information, which, if known and considered by the Army at the time of enlistment or reenlistment, might have resulted in rejection.  A soldier discharged for fraudulent entry will receive an Honorable Discharge Certificate, a General Discharge Certificate, or a character of service under other than honorable conditions, as appropriate.

The maximum punishment for fraudulent enlistment authorized by the MCM is a dishonorable discharge, 2 years confinement, and forfeiture of all pay and allowances.  The maximum punishment for (making) false official statements is a dishonorable discharge, 5 years confinement, and forfeiture of all pay and allowances.

Paragraph 3-8 states that a soldier is entitled to an honorable discharge if limited use evidence is initially introduced by the government in the discharge proceedings, and the discharge is based on those proceedings.

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.  Limited use information, as indicated by the Army Discharge Review Board, was introduced by the government during the applicant’s discharge proceedings. Consequently, that board rightfully upgraded his discharge to honorable and restored his rank to Staff Sergeant.

2.  Nonetheless, the applicant’s misconduct, e.g., fraudulent entry, making false official statements, is documented.  The Army Discharge Review Board determined that the reason for his discharge, misconduct, should not be changed.  This Board likewise agrees.  Consequently, his request to upgrade his separation code is denied.

3.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

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 the aforementioned 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.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___jhk___  ___eb___  ___bje__  DENY APPLICATION

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

INDEX

CASE ID	AR2000037043	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000613	
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.  189	110.02	
2.		
3.		
4.		
5.		
6.