MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           6 July 2000
	DOCKET NUMBER:   AR2000040518

	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	
	Mrs. Joyce A. Hughes		Analyst	

  The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. Ernest M. Willcher		Member	
	Mr. John P. Infante		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 be upgraded so that he can receive educational benefits.

APPLICANT STATES:  In effect, that he is now disabled due to an injury in the military.  He states that he was unable to pass his PT test (running) and since he is now disabled he is being denied benefits.

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

He was born on 8 October 1964.  He completed 12 years of formal education.  On 9 October 1986, the applicant enlisted into the Regular Army for a period of 
4 years.  He completed the required training and was awarded military occupational specialty (MOS) 88H, Cargo Specialist.  The highest grade he achieved was pay grade E-3.

On 30 December 1987, the applicant received a letter of reprimand for driving
with a revoked license.

On 26 January 1988, the applicant was counseled for testing positive for marijuana.

On 23 March 1988, the applicant was counseled for not being recommended for pay grade E-4, due to his positive urinalysis.  He was also advised that further incidents could result in his separation/discharge.

On 11 April 1988, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for the wrongful use of marijuana.
His imposed punishment was a reduction to pay grade E-2 and 45 days extra duty.

On 8 and 11 July 1988, the applicant was counseled for failing to report to his appointed place of duty.

On 24 August 1988, the commander notified the applicant that he was being 
recommended for discharge under the provisions of Army Regulation 635-200,
chapter 13, for unsatisfactory performance, with a discharge under honorable conditions discharge.  The commander’s recommendation was based on the applicant’s Field Grade Article 15, for abuse of an illegal drug (marijuana) and for derogatory counseling statements.  The applicant was advised by legal counsel of the basis for the contemplated separation action and the rights available to him.  The applicant acknowledged notification; waived consideration, personal appearance and representation by counsel before a board of officers.  He was afforded the opportunity to submit statements in his own behalf, but declined to do so.
The applicant underwent a mental status evaluation and medical examination, which found him fit for separation.

On 24 August 1988, the appropriate authority approved the recommendation and directed the issuance of a discharge under honorable conditions.  On 29 August 1988, the applicant was discharged, in pay grade E-2, under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance with a general discharge.  He completed 1 year, 10 months and 21 days of creditable active service.

Army Regulation 635-20 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander’s judgement the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier.
Army policy states that a general discharge, under honorable conditions is normally considered appropriate, but an honorable discharge may be granted in meritorious cases.

The Montgomery GI Bill (Active Duty) provides a program of education benefits to the individuals who enter active duty for the first time after 30 June 1985.  
Soldiers are automatically enrolled unless they disenroll at the reception stations. However, to qualify for benefits an honorable discharge is required.

On 14 April 2000, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade of his discharge.

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.  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 requirement.

2.  The evidence of record reveals that the applicant’s discharge was based on his unsatisfactory performance and not for failing PT because of an injury as he contends.

3.  Since the applicant received a general discharge he did not meet the criteria for educational and training benefits.

4.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The narrative reason for separation of the discharge is commensurate with the applicant’s overall record of military service.

5.  The type of discharge directed and the reasons for separation therefore were appropriate considering all the facts of the case.

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

__cmf___  __emw___  __jpi___  DENY APPLICATION

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

INDEX

CASE ID	AR2000040518	
SUFFIX		
RECON		
DATE BOARDED	20000706	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19880829	
DISCHARGE AUTHORITY	AR635-200, Chapter 13	
DISCHARGE REASON	A49.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.4900	
2.		
3.		
4.		
5.		
6.