MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           18 October 2001
	DOCKET NUMBER:   AR2001060261

	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	
	Mr. William Blakely		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Barbara J. Ellis		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 general, under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD).

APPLICANT STATES:  In effect, that he participated in the Montgomery GI Bill (MGIB) and needs his discharge upgraded in order to receive veterans education benefits. 

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

On 15 April 1987, he entered the Army for 3 years.  He was trained and served in military occupational specialty (MOS) 16S (Man Portable Air Defense).  During his tenure on active duty he was awarded the Humanitarian Service Medal, Army Service Ribbon, and the highest rank he attained was private first class/E-3.

The applicant’s disciplinary history includes his acceptance of nonjudicial punishment (NJP) on two separate occasions.  The first on 13 July 1988 for failure to obey a lawful order and the second on 18 May 1989 for the wrongful use of marijuana.  His punishment for the second NJP action included a reduction in rank to private/E-1.  Additionally, he was formally counseled on three separate occasions for failure to report to his prescribed place of duty.

On 16 August 1989, the applicant was notified by his commander that separation action was being initiated against him under the provisions of chapter 14-12c, Army Regulation 635-200, for the commission of a serious offense based on his illegal drug use.  The applicant’s inability or unwillingness to meet acceptable standards required of enlisted personnel in the Army was further cited by the commander as a basis for taking the action.  The applicant acknowledged receipt of the action, consulted counsel, and completed his election of rights. 

On 29 August 1989, the appropriate authority approved the separation action and directed the applicant receive a GD.  On 15 September 1989, the applicant was discharged accordingly after having completed a total of 2 years, 5 months, and 1 day of active military service.  The applicant’s separation document (DD Form 214) confirms in Item 28 (Narrative Reason For Discharge) that the reason for his separation was “Misconduct-Abuse of Illegal Drugs”.

On 3 February 1997, the Army Discharge Review Board (ADRB) changed the narrative reason for the applicant’s discharge to “Misconduct” under current regulatory standards but concluded that his discharge was proper and equitable at the time it was issued.  The ADRB further determined an upgrade of his discharge to fully honorable was not warranted. 

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.

Title 38, United States Code, chapter 30, section 1411(b) provides the legal authority for granting education benefits under the provisions of the MGIB.  The Department of Veterans Affairs (VA) administers the program and has established the following eligibility criteria for solders separated prior to their normal expiration of term of service (ETS):  must be released by reason of hardship, medical disability, or convenience of the government; must have served at least 20 months of a  2 year enlistment and 30 months of a 3 or more year enlistment; and service must be characterized fully honorable.

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.  The Board notes that the ADRB voted to change the narrative reason for the applicant’s separation to simply “Misconduct” based on current regulatory standards but voted to deny an upgrade of his discharge to fully honorable based on his overall record of service and the Board concurs with these findings. 

2.  The evidence of records shows the applicant had an extensive disciplinary history prior to committing the offense which led to his discharge.  Further, the Board concludes that by violating the Army’s drug policies he clearly diminished the quality of his service below that meriting a fully honorable discharge.  Thus, the Board concludes his GD was appropriate based on his record of service. 

3.  The Board notes the applicant’s desire to receive education benefits but it finds this reason is not sufficient to warrant upgrading his discharge.  The applicant’s drug offense coupled with his prior disciplinary history clearly diminished the quality of his service below that meriting a fully honorable discharge.  Thus, the Board finds an upgrade his discharge is not warranted at this time. 

4.  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.

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

__FNE__  __MHM__  __BJE __  DENY APPLICATION

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

INDEX

CASE ID	AR2001060261	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/10/18	
TYPE OF DISCHARGE	(GD)	
DATE OF DISCHARGE	19890915	
DISCHARGE AUTHORITY	AR635-200 .  .  .  .  .  	
DISCHARGE REASON	Misconduct	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	34.00	
2.		
3.		
4.		
5.		
6.