PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           15 June 2000
	DOCKET NUMBER:   AR2000038327

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W.S. Chun		Director	
	Ms. Anita McKim-Spilker                        		Analyst	

  The following members, a quorum, were present:

	Mr. Orville W. Troesch, Jr.		Chairperson	
	Ms. Kathleen A. Newman		Member	
	Ms. Margaret V. Thompson		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                            records
	Exhibit B - Military Personnel Records (including
	                 advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that his general discharge (GD) be upgraded to honorable.

3.  He states, in effect, that he was told that he could have his discharge automatically upgraded so he could enter the National Guard; that he was not aware that his RE code would prevent him from reentering the Army; that he made a foolish mistake due to family stress and problems; that he was a model soldier with no nonjudicial punishment; that he only made one mistake which could have been corrected with rehabilitation; and, that he has suffered long enough with the stigma of a GD.

4.  The applicant’s military records show that on 25 June 1978 he was honorably discharged for the purpose of immediate reeenlistment in the Regular Army (RA) for a period of 3 years and 4 months (extension).  It appears that the applicant received a separate DD Form 214 covering his initial enlistment from 23 December 1975-25 June 1978 for a total of 2 years, 6 months, and 3 days. 

5.  On 26 October 1981, while in Germany, he was honorably discharged for the purpose of immediate reenlistment.  On 27 October 1981 he reenlisted in the RA for a period of 4 years.  At the time of his reenlistment he held the rank of specialist/E-4 and had completed 3 years and 4 months of active military service. It appears that the applicant extended his initial enlistment to complete an overseas tour with his dependents.

6.  On 31 January 1985, while at Fort Stewart, Georgia, he was honorably discharged for the purpose of immediate reenlistment.  On 1 February 1985 he reenlisted in the RA for a period of 3 years.  At the time of his reenlistment he held the rank of sergeant/E-5 and had completed 9 years, l month, and 8 days of active military service.  

7.  On 8 February 1985, at Fort Stewart, Georgia, he extended for a period of 9 months in order to complete an overseas tour with dependents.  

8.  On 19 March 1986 he departed Fort Stewart, Georgia, in casual status en route to Korea.

9.  On 9 March 1987 he received the Army Achievement Medal for meritorious service from 22 April 1986-20 April 1987.

10.  On 26 April 1987 he departed Korea in casual status en route to Fort Lee, Virginia, to attend the NCO Academy.  He successfully completed training at Fort Lee, Virginia, and was assigned to Fort Stewart, Georgia.

11.  On 12 August 1987 he received a Letter of Reprimand for refusing to submit to a breathalyzer examination when he was stopped by civilian police for suspicion of driving under the influence.

12.  On 1 September 1987 he received a letter of concern from his commander.  The commander indicated that the applicant had committed several actions of misconduct – failing to prepare to go to the field, failing to notify the chain of command that he was leaving the pass area limit; and, failing to tell his wife of his location. 

13.  On 24 September 1987 he accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, for wrongful use of cocaine.  The punishment imposed consisted of reduction to E4, a forfeiture of $621 pay per month for
2 months ($300 per month suspended for 180 days) and 30 days restriction.

14.  On 19 October 1987 a local bar to reenlistment was approved. 

15.  On 27 October 1987 the commander initiated separation proceedings against the applicant under the provisions of AR 635-200, chapter 14, for misconduct. 

16.  On 27 October 1987 the applicant waived his right to an administrative separation board based contingent upon his receiving a characterization of service of no less favorable than general.  He also indicated that he understood if he received a characterization of service of less than honorable, that he could make application to the Army Discharge Review Board or the Army Board for Correction of Military Records for upgrading; however, he realized that an act of consideration by either board did not imply that his discharge would be upgraded. 

17.  On 6 November 1987 the appropriate authority approved his discharge and ordered him separated with a GD.  Accordingly, on 1 December 1987 the applicant was discharged.  

18.  The applicant’s DD Form 214 shows that he was discharged under the provisions of AR 635-200, paragraph 14-12d, by reason of misconduct – abuse of illegal drugs, and credited with 9 years, 5 months, and 6 days active military service for the period under review. 

19.  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, convictions 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.  Regulations currently in effect list the reason for the applicant’s discharge as misconduct.

20.  Department of Defense Directive 1332.28 (discharge review procedures and standards) provides, in pertinent part, that a discharge shall be deemed equitable unless the policies and procedures under which the applicant was discharged differ materially from those currently in effect, provided that the current policies or procedures represent a substantial enhancement of rights and there is substantial doubt that the same result would have been obtained under the current standards.

21.  On 25 August 1997 the Army Discharge Review Board reviewed and denied the applicant’s request for an upgrade of his discharge.

CONCLUSIONS:

1.  The applicant’s separation under the provisions of Army Regulation 635-200, chapter 14, was administratively correct and in conformance with applicable regulations.  The applicant voluntarily waived his right to an administrative board of officers contingent upon his receiving a GD.  He also indicated that he understood that the US Army does not have, nor has it ever had, a policy to automatically upgrade discharges and that he could make application to the appropriate board for an upgrade.

2.  The overall quality of the applicant’s last period of service does not warrant an upgrade of the discharge.  However, his prior term of service, which included 
6 years, 7 months, and 6 days of honorable service, should be considered a complete and unconditional separation. 

3.  Although the applicant was not eligible for a complete and unconditional separation on 31 January 1985, the honorable discharge issued to him for the purpose of immediate reenlistment terminated a period covering more than 
6 years of honorable service.

4.  In consideration of the foregoing findings and conclusions, and in recognition of his more than 6 years of good service, it would be unjust to consider his honorable discharge of 31 January 1985 as other than a complete and unconditional separation from the military service.

5.  The Board determined that the regulation currently in effect provides a substantial enhancement of rights by changing the narrative reason for separation from “Misconduct-Abuse of Illegal Drugs” to “Misconduct” on his general discharge of 1 December 1987.    

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected to show that the individual concerned was eligible for a complete and unconditional separation from the military service at the time of his honorable discharge on 31 January 1985.

2.  That the narrative reason for discharge be corrected to show that he was separated by reason of misconduct on 1 December 1987.

3.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

___owt__  ___kan__  __mvt___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000038327	
SUFFIX		
RECON		
DATE BOARDED	20000615	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19871201	
DISCHARGE AUTHORITY	AR 635-200 C14	
DISCHARGE REASON	144.6770.0000	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1. 	144.9220.0000	
2.  	144.9442.0000	
3.  	144.0100.0000	
4.		
5.		
6.