MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:            21 November 2000
	DOCKET NUMBER:   AR2000043294

	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. Thomas A. Paqan		Chairperson	
	Mr. Thomas E. O'Shaughnessy		Member	
	Mr. Roger W. Able		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) be upgraded to an honorable discharge.  

APPLICANT STATES:  In effect, that he believes his GD was unjust.  He explains that while he was home on convalescent leave, he made a mistake which has haunted him through the years.  He is much older now and has been in no trouble since leaving the Army.  He states that he is proud to say that he was a serviceman, but not proud of his actions before his discharge.  He acknowledges that he also tried to reenlist in the Army when the Gulf War was about to happen.  However, he had misplaced his DD Form 214 (Certificate of Release or Discharge from Active Duty) before visiting the recruiter.  He explained the circumstances surrounding his discharge to the recruiter, and he never heard from him. 

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

He enlisted in the Regular Army for 3 years on 1 February 1983.  He completed his basic training at Fort Knox, Kentucky and began his advanced individual training (AIT) in military occupational specialty (MOS) 76Y10 (Unit Supply Specialist) at Fort Lee, Virginia, on 2 April 1983.

On 1 June 1983, he was reassigned to parachute training at Fort Benning, Georgia. Upon successful completion of his training, he was transferred to Fort Bragg, North Carolina and was assigned to duties within his MOS as a general supply clerk on 14 July 1983.  

The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, on 17 February 1984, for failing to go to his place of duty, to wit: the Battalion S-4 shop on 15 February 1984.  His punishment included reduction to pay grade E-2, which was suspended for 60 days, 14 days of extra duty and restriction. 

The applicant received his second NJP, on 7 September 1984, for failing to go to his place of duty, to wit: Headquarters Company formation area on 
5 September 1984.  His punishment included reduction to pay grade E-2, which was suspended for 180 days, 14 days of extra duty and restriction. 

On 7 January 1985, the applicant participated in a urinalysis screening for use of drugs.  On 30 January 1985, the results of the test showed that he was positive for the use of cocaine.   

On 4 February 1985, a DA Form 268 (Report for Suspension of Favorable Personnel Actions) was initiated due to his positive urinalysis.

On or about 11 February 1985, the applicant’s unit commander initiated action to separate him under the provisions of chapter 14, AR 635-200, for misconduct - commission of a serious offense due to a positive urinalysis.  The applicant was advised of his rights and that he could receive a discharge under other than honorable conditions (UOTHC).

On an unknown date, he consulted with legal counsel and was informed of the impact of a less than fully honorable discharge and requested a hearing by a board of officers.  He elected to make a statement in his own behalf and also provided two letters of character reference.

On 12 February 1985, he underwent a psychiatric evaluation.  He was diagnosed with a mixed personality disorder.  However, he was found to meet retention standards as prescribed in chapter 3, Army Regulation (AR) 40-501 and had no psychiatric disorder, which warranted medical disposition.  He was found to be mentally responsible, able to distinguish right from wrong and adhere to the right.
He had the mental capacity to understand and participate in board proceedings.
He was cleared for any administrative action that was deemed appropriate by command.

On 8 March 1985, the applicant underwent a mental status evaluation and medical examination, which cleared him for separation.

On 14 March 1985, the applicant’s commander recommended that he be separated under the provisions of chapter 14, AR 635-200, for misconduct - commission of a serious offense due to a positive urinalysis.  His commander recommended that further rehabilitation be waived.  He stated that during the period the applicant had been assigned to his unit, that his duty performance had been marginally satisfactory.  He “has not demonstrated any great lack of motivation or initiative (sic), nor demonstrated a desire to excel in his military duties.”  The commander noted that the applicant was enrolled into an Operation Awareness Program due to alcohol, however this comment was not further clarified. 

His battalion and group commanders concurred with the recommendation for separation. 

On 5 April 1985, the approving authority waived rehabilitation efforts and approved his discharge for abuse of illegal drugs, with a GD.  Since the applicant received a GD, he was not entitled to a hearing by a board of officers.

On 6 May 1985, the applicant was discharge with a GD, under the provisions of chapter 14, AR 635-200, for misconduct – drug abuse.  He had 2 years, 3 months and 6 days of creditable service and no lost time.  The highest grade he achieved was pay grade E-3.  

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 included minor disciplinary infarctions, a pattern of misconduct, commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and exertion or absences without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  Army policy states that a discharge UOTHC is normally considered appropriate, but a GD under honorable conditions or an honorable discharge may be granted in certain cases.

The applicant applied to the Army Discharge Review Board on 8 June 2000, which was well beyond that board’s 15 year statue of limitations to review discharge cases.  Therefore, his case was referred to this Board for review 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 this requirement.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of any procedural errors that would jeopardize his rights.  

3.  The type of discharge directed and the reason therefore were appropriate considering all the facts of the case.

4.  The Board notes that the applicant had two NJPs.  The applicant’s abuse of illegal drugs and his marginal duty performance clearly supported the separation action at that time in his career.

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

________  ________  ________  DENY APPLICATION

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

INDEX

CASE ID	AR2000043294	
SUFFIX		
RECON		
DATE BOARDED	20001121	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19850506	
DISCHARGE AUTHORITY	AR .635-200 CH14 	
DISCHARGE REASON	A	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.		
2.	A	
3.	A	
4.	A	
5.	A	
6.