MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:           3 October 2000
	DOCKET NUMBER:   AR2000040625

	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. Antoinette Farley		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Mr. Richard T. Dunbar		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 general discharge (GD), under honorable conditions be upgraded to an honorable discharge.  

APPLICANT STATES:  In essence, he states that he applied for a job at a particular company, but was not considered employable by them based on coming up positive on a urine test while in the Army.  He tried to further explain to the company that his birthday was 2 days before the urinalysis and “a so called friend put marijuana in brownies” served at the party.  He further claimed that he didn’t know until after the test about this.  The company asked him why he didn’t explain this to the Army.  He admits his reasons were that it was a hard time in his life, he wanted an easy way out and he knew that it was wrong.  Finally, he claims that he has never come up positive since that event and does not “do drugs”.

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

On 26 June 1989, he enlisted in the United States Army Reserve (USAR) 
for 8 years and was assigned to a Troop Program Unit (TPU), Company D, 52nd Engineer Battalion, Santa Fa, New Mexico.  On 6 June 1990, he was ordered to active duty for training.  He completed his basic training and advanced training at Fort Leonard Wood, Missouri, and was awarded military occupational specialty (MOS) 51B10 (Carpentry & Masonry Specialist).  On 4 October 1990, he was released from active duty and was returned to his USAR unit.  He had 3 months and 9 days of active service.

On 11 October 1990, he and his USAR unit were ordered to active duty to participate in Operation Desert Shield/Desert Storm in Saudi Arabia.  He served overseas in Southwest Asia between 28 November 1990 and 24 April 1991.  He was released from active duty with an honorable discharge on 12 May 1991.  He had 7 months and 2 days of active service with no lost time. 

The applicant’s DD Form 214, (Certificate of Release or Discharge from Active Duty) and DD Form 215 (Correction to DD Form 214) shows awards of the National Defense Service Medal, the Army Service Ribbon, the Southwest Asia Service Medal w/3 bronze service stars, the Kuwait Liberation Medal, the Army Lapel Button, the Marksmanship Badge (M16), and the Expert Badge (Hand Grenade).

On 13 May 1991, he returned to his TPU in a drilling status in New Mexico, in order to complete his remaining service obligation in the USAR.  On 15 June 1991, he was advanced to pay grade E-3.  The applicant was assigned to overseas duty in Belize from 19 February to 7 March 1993.

On 17 September 1994, the applicant participated in a urinalysis screening for use of drugs.  On 27 September 1994, the results of the test showed that he was positive for use of marijuana.   

On 28 November 1994, the unit commander notified the applicant by mail of the initiation of separation action under the provisions of Chapter 7, Army Regulation 135-178 by reason of misconduct, with an under honorable conditions discharge.  The notification included a DA Form A856 (General Counseling Form) for the positive urinalysis. The notification also included his right to counseling by a military lawyer, the right to have his case heard by a board of officers and to submit a statement in rebuttal of the separation action.  However, he never responded to the notification of the separation action.

On 13 January 1995, his unit and intermediate commanders recommended approval with a GD.  On 9 February 1995, the command Staff Judge Advocate determined the separation action to be legally sufficient and recommended separation with a GD.  He stated that by not responding to the mailed notification, the applicant had waived his rights.  

On an unknown date, the separation authority (a brigadier general) approved and directed that the applicant be discharged with a GD.

On 25 February 1995, Orders No. 08-04 Headquarters, 420th Engineer Brigade, Bryan, Texas, separated the applicant with a GD.  He had 5 years and 8 months of service and no lost time.

The applicant made application to the Army Discharge Review Board (ADRB) seeking a change in the characterization of the discharge.  On 23 February 2000, the ADRB denied his request finding the discharge process to be proper and equitable.

Army Regulation 135-178 (Separation of Enlisted Personnel) provides for the separation of enlisted personnel of the Army Reserve and Army National Guard. Chapter 7 of the regulation, in effect at the time, 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, and convictions by civil authorities.  Paragraph 7-11.c.1, in pertinent part, states that abuse of illegal drugs is serious misconduct and discharge action normally will be based on commission of a serious offense.  First time drug offenders in the rank of sergeant and above, and all soldiers with 3 or more years of total military service (Regular and Reserve) will be processed for discharge on discovery of a drug offense.  A discharge under other than honorable conditions is normally appropriate for a soldier discharged under this chapter.  However, the separation authority may direct a GD 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, 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 this requirement.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors, which would tend to jeopardize his rights.

3.  The Board concludes that his overall record of service was considered in the discharge process.  Therefore, it finds the discharge proper and the characterization of service appropriate.

4.  The applicant has failed to provide any evidence that he was “fed” marijuana in brownies at a party.  He should have resolved this matter at the time of notification of the discharge action.

5.  The Board notes the applicant’s difficulty in obtaining employment due to his positive urinalysis.  While this is unfortunate, it in no way changes the reason for his discharge or that he tested positive for use of marijuana.

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

__jns          __rjw____  __rtd___   DENY APPLICATION

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

INDEX

CASE ID	AR2000040625	
SUFFIX		
RECON		
DATE BOARDED	20001003	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19950225	
DISCHARGE AUTHORITY	AR 135-178/CHAP 7	
DISCHARGE REASON	A	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	A	
2.	A	
3.	A	
4.	A	
5.		
6.