MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           6 June 2002                  
	DOCKET NUMBER:   AR2002068745

	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. Stephanie Thompkins		Analyst	

  The following members, a quorum, were present:

	Mr. Stanley Kelley		Chairperson	
	Mr. John T. Meixell		Member	
	Mr. Thomas E. O'Shaugnessy, 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:  That his general discharge under honorable conditions be upgraded to honorable.

APPLICANT STATES:  That his full past military career was not considered and the battalion commander was determined to make an example out of his case.  He also states that there were discrepancies with the way the urinalysis was conducted and also with the chain of custody.  He does not have copies of all the records concerning his discharge and it has been extremely difficult to obtain any type of government job at any level once they see a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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

He enlisted in the Regular Army on 27 July 1983 with prior service.

He attained the rank of sergeant, pay grade E-5, on 6 April 1987.

On 16 November 1987, he tested positive for use of marijuana.

On 13 January 1988, his commander advised the applicant that he intended to recommend the applicant for administrative separation for commission of a serious offense.

On 27 January 1988, through counsel the applicant acknowledged the contemplated action to separate him for misconduct – abuse of illegal drugs.  He elected not to have his case heard before a board of officers, waived personal appearance before an administrative separation board and elected not to submit a statement in his own behalf.

On 2 February 1988, the applicant’s commander recommended he be separated from the service due to commission of a serious offense under the provisions of Army Regulation 635-200, chapter 14.  He also recommended that the applicant be separated with an other than honorable discharge.

On 12 February 1988, his commander appointed an administrative separation board to determine if the applicant should be separated under the provisions of Army Regulation 635-200, chapter 14.

On 17 March 1988, the applicant waived consideration by a separation board contingent upon his receiving a characterization of service or description no less favorable than a general discharge.  He also did not submit a statement in his own behalf.

On 22 March 1988, the Criminal Law Division of the Office of the Staff Judge Advocate reviewed the separation action for wrongful use of marijuana and found it to be legally sufficient.

The appropriate authority approved the discharge and the applicant was separated on 1 April 1988, under the provisions of Army Regulation 635-200, chapter 14, Misconduct-Drug Abuse.  He had a total of 4 years, 8 months and 5 days net active service this period.  His character of service was general, under honorable conditions. 

On 10 October 1991, the Army Discharge Review Board denied his request for an upgrade of his discharge.

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 drug offense and must be processed for separation after a second offense.  The issuance of a discharge under other than honorable conditions is 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.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge or to a change in the reason for his discharge.  He has not shown error, injustice, or inequity for the relief he now requests.  He was properly discharged and he has not shown otherwise.  

2.  The Board has noted his contentions that his entire past military record was not considered and there were discrepancies with the way the urinalysis was conducted.  However, the one incident that led to the applicant’s discharge was a serious act of misconduct.  He was afforded the opportunity to submit statements in his own behalf, but he declined to do so.  The applicant’s misconduct thus diminished the quality of his service below that meriting a fully honorable discharge.

3.  This Board also presumes administrative regularity in the processing of the applicant's urinalysis.  There is nothing in the available records or submitted by the applicant to overcome that presumption.

4.  The Board also notes that the applicant requested he receive a characterization of service or description no less favorable than a general discharge and a discharge under other than honorable conditions was normally considered appropriate.

5.  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.

6.  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

__sk____  __jtm___  __teo___     DENY APPLICATION

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

INDEX

CASE ID	AR2002068745	
SUFFIX		
RECON		
DATE BOARDED	YYYYMMDD	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.	A70	
2.		
3.		
4.		
5.		
6.