MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           13 March 2001                   
	DOCKET NUMBER:   AR2000047555

	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. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Mr. Donald P. Hupman, Jr.		Member	
	Mr. John T. Meixell		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 under other than honorable conditions (UOTHC) for his second period of service be upgraded and that his rank be restored.

APPLICANT STATES:  That he was railroaded and prosecuted illegally by the Army and Command Sergeant Major (CSM) B___ while he was in a medical retirement status as a Specialist (SPC), E-4 with 7 years in the Army.  He was up for a medical discharge at Great Lakes Naval Hospital.  The Army sent him to Fort Knox, KY to outprocess but upon arriving they (i. e., CSM B___ and his staff) questioned his medical status.  He would have been medically discharged had it not been for racism and prejudice at Fort Knox, KY.  There will be no justice until he has been compensated and given the opportunity to prove that he was discharged only to save the Government money and deny him and his dependents their benefits.

COUNSEL CONTENDS:  Counsel makes no additional contention.

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

He enlisted in the Regular Army on 1 August 1989.  He completed basic training and advanced individual training and was awarded military occupational specialty 71L (Administrative Specialist).  He was promoted to SPC, E-4 on 1 March 1992.
He reenlisted on 20 September 1993 for 4 years.  He was assigned to the 86th Army Reserve Command, Forest Park, IL with duty at Milwaukee, WI when he    was reassigned to Fort Knox, KY.  There is no evidence in the available records to show this was a reassignment for the purpose of outprocessing for medical or any other reasons.  He arrived at Fort Knox, KY on or about 19 December 1995.

On 22 February 1996, the applicant submitted a routine urinalysis sample which was subsequently tested positive for marijuana.

On 12 March 1996, the applicant was given a direct order to have no contact with a female Specialist.  On 14 March 1996, the female Specialist filed a written complaint against the applicant for sexual harassment. 

On 14 March 1996, the applicant requested to talk with his commander.  He was read his rights and he elected to answer questions without a lawyer present.  To his commander and two witnesses he admitted to smoking marijuana when he was on leave at the end of January/beginning of February 1996.  In what appears to be a separate interview on the same date, he denied sexually harassing anyone.  

On 15 March 1996, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for wrongful use of marijuana.  His punishment was a reduction to Private, E-2.  
On 15 March 1996, the applicant was given a temporary profile for arthritis and assignment limitations of physical training at his own pace.  

On 18 March 1996, it appears the applicant initiated a separation physical.  However, the reverse side of the Report of Medical Examination, SF Form 88, is not available.  His medical records are not available.  It appears he was referred for consultation about a high cholesterol count.  A diagnostic radiology revealed no radiographic cardiopulmonary abnormalities.

On 19 March 1996, the applicant underwent a mental status evaluation.  He was found to be mentally responsible and to have the mental capability to understand and participate in proceedings.  He was psychiatrically cleared for any action deemed appropriate by his command.

On 21 March 1996, the applicant was counseled for perpetrating a fraud against the Government on 22 February 1996 by informing the local defense and accounting office that he did not receive a $1,000.00 check sent to him on           3 February 1996 and that he did not endorse such a check.  He signed an official document to that effect.  He was also counseled at this time for making unauthorized personal calls on a military phone.

The Post Equal Opportunity Advisor, Sergeant First Class R___, conducted an inquiry into complaints against the applicant and on 26 March 1996 found a pattern of misconduct that disturbed the good order and discipline of the female soldiers who came in contact with the applicant.  It was the Advisor’s opinion that the applicant’s behavior demonstrated that he could be charged with cruelty and maltreatment, extortion, assault, and communicating a threat and recommended that the applicant be separated without delay.

A memorandum prepared by the applicant’s commander dated 28 March 1996 indicated that the applicant had been enrolled in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) by command referral for alcohol addiction, successfully completing the program as “fair” on 21 December 1993.  He was again enrolled in ADAPCP by command referral for alcohol addiction on 28 May 1994, successfully completing the program on 27 October 1994 as “good.”  He was not enrolled in ADAPCP at the time he tested positive for marijuana so he was again command referred, this time for marijuana use.  ADAPCP did reveal that the applicant did not follow up on his responsibilities to attend outpatient therapy at his last unit.  A chapter 9 separation, for drug/alcohol rehabilitation failure, was not appropriate since he was not then currently enrolled in ADAPCP.

On 1 April 1996, the applicant’s commander notified the applicant that she was initiating action to separate the applicant for serious misconduct and that she was recommending that he receive a discharge UOTHC.
On 4 April 1996, the applicant was advised by consulting counsel of the basis for the contemplated separation action.  He requested consideration of his case by a board of officers and requested consulting counsel.

On 4 April 1996, the applicant’s commander recommended the applicant be separated under the provisions of Army Regulation 635-200, chapter 14 for serious misconduct.  The reasons cited by the commander were the applicant’s use of marijuana, attempted fraud, disobeying a commissioned officer, making a false official statement, communicating threats, solicitation of prostitution, and indecent language by making sexual comments.

On 10 April 1996, the applicant conditionally waived consideration of his case by a board of officers and appearance before such a board contingent upon his receiving a characterization of service of no less than general under honorable conditions.  He requested consulting counsel.  He elected not to submit a statement on his behalf.

On 22 April 1996, the applicant waived consideration of his case by a board of officers and appearance before such a board and he waived consulting counsel.

On 3 May 1996, the applicant withdrew his unconditional waiver for discharge dated 22 April 1996 and renewed his conditional waiver dated 10 April 1996.  He stated that he had no problems with sexual harassment or any other type of misconduct with the exception of his substance abuse problem which was diagnosed in late 1995.  Upon his arrival at Fort Knox, KY he notified his unit about his substance abuse problems and requested discharge.  He provided them an (unsigned and undated) memorandum from his former commander certifying that the applicant had been referred for treatment for alcohol and cocaine dependence, had graduated from Phase III effective 19 October 1995, and had been actively participating in outpatient therapy.

On 7 May 1996, the applicant’s company, battalion, and brigade commanders reviewed the entire chapter packet to include the additional interview with the applicant, dated 14 March 1996, and all recommended he receive a discharge UOTHC.

On 13 May 1996, the applicant again waived consideration of his case by a board of officers and appearance before such a board.  He requested consulting counsel.

On 31 May 1996, the appropriate authority approved the recommendation and directed the applicant receive a discharge UOTHC.

On 5 June 1996, the applicant was discharged, with a discharge UOTHC, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 14, for misconduct.  He had completed 6 years, 10 months, and 5 days of creditable active service and had no lost time.

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 and an unfit medical condition is not the direct or substantial contributing cause of his misconduct.  A discharge UOTHC is normally appropriate for a soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the soldier’s overall record.  

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  The regulation defines “physically unfit” as unfitness due to physical disability.  The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  Paragraph 4-3 states that an enlisted soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions.  If a case comes within these limitations, the commander exercising general court-martial jurisdiction over the soldier may abate the administrative separation.  The general court-martial convening authority (GCMCA) may refer a case file to the Physical Evaluation Board if the GCMCA finds that the disability is the cause, or a substantial contributing cause, of the misconduct that might result in a discharge UOTHC or finds that other circumstances warrant disability processing instead of alternate administrative separation.

On 19 January 2001, 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.  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.  There is no evidence to show that the applicant was in the physical disability processing system at any time.  The only profile available is a temporary profile. Even the unsigned and undated memorandum from his former commander certifying he had graduated from Phase III effective 19 October 1995 made no mention of his being assigned to Fort Knox, KY for medical separation.  Even if he had been in the physical disability processing system, once action was started to separate him under Army Regulation 635-200, chapter 14, which authorized a characterization of service of under other than honorable conditions, it would have been appropriate to stop that processing.

4.  The evidence shows that the applicant’s misconduct was substantiated by more than just one person (i. e., CSM B___).  The Board finds no evidence to show that he was “railroaded” due to racial discrimination.

5.  The Board acknowledges that the applicant’s misconduct that resulted in     his discharge occurred during his last assignment during a relatively short period of time.  However, considering the type of misconduct for which he was cited,      the characterization of his discharge as UOTHC was appropriate.  The Board also acknowledges that he had completed his first term of service honorably.  However, he abused alcohol and drugs throughout the period from his reenlistment on 20 September 1993 to January 1996, when his misconduct at Fort Knox started.  The Board concludes that such behavior does not warrant upgrading of his discharge.

6.  The applicant was a Specialist with 6 years in service and a prior history of substance abuse.  The Board concludes that the punishment given under the Article 15 for marijuana use, a reduction to Private, E-2, was appropriate given the circumstances.  His reduction to Private, E-1 due to the characterization of his discharge was appropriate.

7.  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

__jh____  __dph___  __jtm___  DENY APPLICATION

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

INDEX

CASE ID	AR2000047555	
SUFFIX		
RECON		
DATE BOARDED	20010313	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19960605	
DISCHARGE AUTHORITY	AR 655-200, ch 14  	
DISCHARGE REASON	A60.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.	133.01	
3.		
4.		
5.		
6.