MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           1 March 2001                   
	DOCKET NUMBER:   AR2000050228

	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:

	Mr. John H. Kern		Chairperson	
	Mr. Curtis L. Greenway		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 under honorable conditions discharge be upgraded to an honorable discharge.

APPLICANT STATES:  The applicant defers to counsel.

COUNSEL CONTENDS:  That the applicant is entitled to upgrade of his discharge to honorable.  His command agreed to his leaving the Army based on his having recently enlisted and based also upon his father’s illness.  He is entitled to the upgrade first, because Army Regulation 15-185, change 1 states that “a former Army service member is entitled to an honorable discharge (because) a less than honorable discharge was issued to (him) in an administrative proceeding in which the Army introduced evidence developed by or as a ..result of compelled urinalysis testing administered for the purpose of identifying drug abusers…”  Second, because after four years of suffering with the lack of meaningful employment caused by the stigma associated with his less than honorable discharge, and presently without a home, the punishment to the applicant has more that served its useful purpose.  Lastly, his meritorious service record prior to the incident demonstrates that he was a good soldier who made a mistake in his youth.  Supporting evidence is as listed as exhibits in counsel’s memorandum.

EVIDENCE OF RECORD:  The applicant’s military records are not available.  Information contained herein was obtained from the applicant’s Army Discharge Review Board (ADRB) packet.

The applicant was born on 11 December 1973.  On 24 June 1992, he enlisted in the Regular Army.  He completed basic training and advanced individual training and was awarded military occupational specialty 52C (Utility Equipment Repairer).  He was promoted to Specialist, E-4 on 24 August 1994.  He was honorably discharged on 19 March 1996 for the purpose of immediately reenlisting on 20 March 1996.

On 13 May 1996, the applicant accepted non-judicial punishment under Article 15, Uniform Code of Military Justice for wrongfully using marijuana between        6 February and 6 March 1996.

On 10 August 1996, the applicant’s company commander initiated separation proceedings under Army Regulation 635-200, chapter 14 for misconduct – commission of a serious offense.

The applicant was advised of his rights, he consulted with legal counsel, he was advised of the impact of the discharge action, and he did not submit a statement in his behalf.  The commander subsequently recommended separation from the service and waiver of further rehabilitative efforts.

On 21 August 1996, the appropriate authority approved the recommendation and directed the applicant receive a general discharge under honorable conditions.

On 26 August 1996, the applicant was discharged, with a general discharge under honorable conditions, in pay grade E-1, under Army Regulation 635-200, chapter 14, for misconduct.  He had completed 5 months and 7 days of creditable active service for that period with no lost time and a total of 4 years,    2 months, and 3 days of creditable active service with no lost time.

On 10 November 1998, the ADRB denied the applicant’s request for an upgrade of his discharge.

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.  In pertinent part, the regulation states that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.  A general discharge is a separation from the Army under honorable conditions.  It is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

Army Regulation 15-185 governs the operation of the Board.  Change 1, effective 1 June 1982, added paragraph 1 to the regulation dated 18 May 1977.  Paragraph 31 stated that pursuant to the 27 November 1979 order of the U.S. District Court for the District of Columbia in “Giles v. Secretary of the Army,” a former Army service member was entitled to an honorable discharge if a less than honorable discharge was issued to him in an administrative proceeding in which the Army introduced evidence developed by or as a direct or indirect result of compelled urinalysis testing administered for the purpose of identifying drug abusers.

Army Regulation 15-185 dated 18 May 1977 was superseded by Army Regulation 15-185 dated 29 February 2000.  Paragraph 31, which had been added by change 1 to the old version of the regulation, was not incorporated into the updated regulation.

In Giles v. Secretary of the Army, the defendant sought an interpretation of the scope of a 1974 Court of Military Appeals decision involving orders to compel urinalyses as part of an Army drug rehabilitation program.  The U. S. District Court for the District of Columbia noted that in January 1975 the Army modified its regulations to prohibit the issuance of a less than fully honorable discharge to service members separated under circumstances comparable to the plaintiff’s.
The revised Army policy, also known as the limited use policy, provides that evidence developed by or as a direct or indirect result of a member’s having volunteered for treatment or by or as a direct or indirect result of urinalysis administered for the purpose of identifying drug abusers (either for the purposes of entry into a treatment program or to monitor progress during rehabilitation or follow-up), may not be used in any disciplinary action under the Uniform Code of Military Justice or as a basis for characterizing a member’s discharge as other than an honorable discharge.  The Court noted that Army regulations were amended to conform to Ruiz (United States v. Ruiz, the case cited by Giles as precedent for his action), providing honorable discharges for all service members separated for drug abuse detected by compelled urinalysis.

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.  There is no evidence to show that his urinalysis was ordered as a result of identifying him for entry into a treatment program or to monitor progress during rehabilitation or follow-up.  Therefore, he does not qualify for an upgrade of his discharge on the basis of Giles v. Secretary of the Army.

3.  The Board notes that during the applicant’s “youth” he fully demonstrated he was capable of honorable service.  It was in his maturity, when he was fully aware what the Army’s standards with regards to drug use were, that he committed the offense for which he was discharged.  The Board acknowledges that his first term of service, terminating with his reenlistment on 20 March 1996, was honorable.  However, he did not meet the standards of acceptable conduct, especially for one of his age and rank, during his second enlistment.  His record of service during those 5 months was not sufficiently meritorious to warrant an honorable discharge for that period of service.  His general discharge was not given as a punishment; it merely reflected, and the Board concludes properly, how his record of service during that period was characterized.  

4.  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

__jhk___  __clg___  __jtd___  DENY APPLICATION

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

INDEX

CASE ID	AR2000050228	
SUFFIX		
RECON		
DATE BOARDED	20010301	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19960826	
DISCHARGE AUTHORITY	AR 635-200, ch 14 	
DISCHARGE REASON	A61.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.