MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            14 May 2002
	DOCKET NUMBER:   AR2002067625

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Melvin H. Meyer		Chairperson	
	Ms. Kathleen A. Newman		Member	
	Mr. Donald P. Hupman, Jr.		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 undesirable discharge be upgraded to a general discharge.

APPLICANT STATES:  In effect, that his discharge should be upgraded based on his post-service conduct.  In support of his application he submits seven letters and two certificates in support of his post service accomplishments.

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

He enlisted in Memphis, Tennessee, on 2 October 1989, for a period of 5 years and training as a construction equipment repairer.  He successfully completed his training at Fort Leonard Wood, Missouri, and was transferred to Fort Stewart, Georgia, on 1 March 1990.  He was advanced to the pay grade of E-3 on 1 September 1990 and deployed with his unit to Saudi Arabia on 29 October 1990, in support of Operation Desert Storm/Shield.  He returned to Fort Stewart on 20 April 1991.

On 22 July 1991, nonjudicial punishment (NJP) was imposed against him for assaulting another soldier, by hitting him in the head with a bat.  His punishment consisted of a reduction to the pay grade of E-2 (suspended until 22 October 1991), a forfeiture of pay, extra duty and restriction.

The applicant was enrolled in the Alcohol Drug Abuse Prevention Control Program (ADAPCP) and on 18 October 1991, was counseled by his commander for being intoxicated while enrolled in Track II of the ADAPCP and for communicating a threat of suicide.

He was advanced to the pay grade of E-4 on 1 January 1992 and again had NJP imposed against him on 27 January 1992, for writing 18 bad checks (in a 2 day period), with intent to defraud.  His punishment consisted of a reduction to the pay grade of E-3, extra duty and restriction.

The applicant’s commander initiated a bar to reenlistment against the applicant on 30 January 1992, based on his disciplinary record and his failure to respond to numerous counseling sessions.  The applicant declined the opportunity to submit a statement in his own behalf and the bar was approved by the battalion commander on 3 February 1992.

The applicant was apprehended by civil authorities on 9 February 1992, for driving under the influence of alcohol (DUI) and possession of cocaine.  He was confined by civil authorities in Georgia, pending Bond.  He was released on 5 March 1992 and was returned to military control.  On 6 March 1992, his commander counseled him regarding the charges he was facing and revoked his off-post pass privileges (directed by battalion commander).  He informed the applicant that he could go anywhere on the installation and that he was not to frequent any facility that sold alcohol.

On 11 March 1992, NJP was imposed against him for the wrongful use of cocaine as detected by urinalysis.  His punishment consisted of a reduction to the pay grade of E-1, extra duty and restriction.  This was his second positive urinalysis for cocaine.

On 22 March 1992, he was counseled by the first sergeant for breaking the battalion commander’s restriction, for again being apprehended for DUI, and for breaking a lawful order not to consume alcohol while enrolled in the ADAPCP.  He was also informed that he was being recommend for punishment for his offenses.

The applicant underwent a mental status evaluation on 26 March 1992 and was psychiatrically cleared for any administrative action deemed appropriate by the command. 

He received a General Officer Memorandum of Reprimand (GOMOR) on 5 April 1992, for the DWI incident on 9 February 1992.  His chain of command recommended that it be filed in his Official Military Personnel File (OMPF) because it was his third alcohol related incident.  The applicant elected not to submit a statement in his own behalf and the Commanding General directed that it be filed in his OMPF. 

On 6 April 1992, the applicant’s commander notified him that he was being recommended for discharge from the service for misconduct, under the provisions of Army Regulation 635-200, Chapter 14, based on his two positive urinalysis, two DUI’s, his disciplinary record, and for writing bad checks.  He also notified the applicant that he was recommending that he be discharged under other than honorable conditions.

After consulting with counsel, the applicant submitted a request for a conditional waiver; whereas he agreed to waive his right to appear before an administrative separation board if he received a characterization of service no less that under honorable conditions (General Discharge).  In the event his request was not accepted/approved, he elected to appear before the board, to be represented by counsel, and not to submit a statement in his own behalf.

The chain of command did not accept his conditional waiver and the applicant appeared before an administrative separation board, represented by counsel, on 16 July 1992, at 0930 hours.  The applicant made an unsworn statement to the board in which he admitted that he had done wrong and was truly remorseful for his actions.  He admitted that he had a drug addiction and indicated that he had finally come to grips with his problem and was beginning to crawl out of the deep hole he had dug for himself.  The commander, first sergeant and six other noncommissioned officers gave testimony to the board and each one indicated that the applicant was a good soldier who had a problem with drugs and alcohol. His work and on duty conduct was considered excellent.  

The board adjourned at 1830 hours on 16 July 1992 and found (unanimously) that the applicant was not desirable for further rehabilitation or retention in the service.  The board recommended that he be discharged under other than honorable conditions.  The appropriate authority (a major general) approved the findings and recommendations of the board on 29 July 1992 and directed that he be discharged under other than honorable conditions.

Accordingly, he was discharged under other than honorable conditions on 26 August 1992, under the provisions of Army Regulation 635-200, paragraph 14-12d, for misconduct – abuse of illegal drugs.  He had served 2 years and 10 months of total active service and had 24 days of lost time due to confinement by civil authorities.

He applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 8 April 1994.  He contended at that time that he was a Desert Storm veteran who willfully served his country and that he would do it again.  He also contended that he never complained of his duties, did not miss physical training, did not ride sick call, obeyed his orders and loved going to the field.  He further contended that he suffered from the disease of alcoholism from birth and that his chain of command knew he was using drugs because he told them twice before he was ever detected by a urinalysis.  The ADRB voted unanimously to deny his request for an upgrade of his discharge.

A review of the supporting documents submitted by the applicant serve to show that he has excellent work habits, is a good employee, and that he is participating in an alcohol recovery program successfully.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service.  Individuals in pay grades E-5 and above must be processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 may also be processed after a first time drug offense and must be processed for separation after a second offense.  While an honorable or general discharge may be issued, a discharge under other than honorable conditions in normally considered appropriate. 

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 administrative separation board which considered the applicant’s case and recommended his discharge, was properly convened and functioned in compliance with pertinent regulations.  The evidence considered was sufficient to support the board’s findings and recommendations.  

2.  Accordingly, he was properly discharged in accordance with the applicable laws and regulations, with no indication of any violations of the applicant’s rights.

3.  The supporting documents submitted by the applicant have been considered by the Board; however, they are not sufficiently mitigating to warrant relief when compared to seriousness of his offenses and overall record of service.

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

__dh____  ___kan__  __mhm __  DENY APPLICATION

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

INDEX

CASE ID	AR2002067625	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/05/14	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1992/08/26	
DISCHARGE AUTHORITY	AR635-200, CH14	
DISCHARGE REASON	MISCONDUCT - DRUGS	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  626	144.6000/A60.00	
2.		
3.		
4.		
5.		
6.