MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           17 December 2002                  
	DOCKET NUMBER:   AR2002072638

	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. G. E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. William D. Powers		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:  That she be authorized separation pay and that her reenlistment eligibility (RE) code be changed to allow her to reenter the military.

APPLICANT STATES:  That if she had gotten the upgraded discharge at the time of her discharge she would have been entitled to separation pay.

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

The applicant had continuous service from 30 October 1990.  She reenlisted as a sergeant (E-5) on 6 November 1997.   

The applicant's command was notified that she had tested positive for marijuana on an 11 March 1998 command directed urinalysis.  

Based on this positive urinalysis, the applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice on 9 April 1998.  Her punishment was reduction in grade to E-4, forfeiture of $779 pay, and 45 days of extra duty.  The forfeiture and extra duty were to be suspended and automatically remitted if not vacated before 7 July 1998.  

On 16 April 1998, the applicant's company commander notified her of the commencement of separation action under Army Regulation 635-200, paragraph 14-12c, commission of a serious offense.

The applicant was afforded physical examination and mental status evaluation (MSE).  The MSE, conducted 5 May 1998, found that the applicant was mentally capable of understanding and participation in the proceeding: mentally responsible, and had no mental disease or defect which warranted disposition through medical channels.  The report noted that the applicant adamantly denied any wrong doings.  She was psychologically cleared for any administrative action deemed appropriate by the command.  The physical examination found no physical disqualifying conditions and that she was qualified for separation.

On 27 May 1998, the applicant's company commander formally recommended that she be discharged and recommended that she receive a general under honorable conditions discharge.  

The applicant acknowledged her rights under the UCMJ and waived her right to consult with a counsel, to have a hearing before an administrative board, or to present written statements in her own behalf.
 
The intermediate commander concurred with the unit commander's recommendations.

On 9 June 1998, the discharge authority approved the discharge but directed that the applicant be separated under other than honorable conditions.

The applicant was discharged under Army Regulation 635-200, paragraph 
14-12c, commission of a serious offense, with an under other than honorable conditions characterization of service and an RE-4.  She had 7 years, 7 months, and 17 days of creditable service.  Her awards and decorations are listed as the Army Commendation Medal, the Army Achievement Medal (second award), the Good Conduct Award (second award), the National Defense Service Medal, the Humanitarian Service Medal, the Noncommissioned Officer's Professional Development Ribbon with Numeral 2, the Army Service Ribbon, the Army Overseas Ribbon, and the Marksman Qualification Badge with Rifle Bar.

On 3 August 2001, the Army Discharge Review Board (ADRB) granted the applicant an upgrade of the characterization of her service to general under honorable conditions but denied her any change in narrative reason for 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.  Specifically paragraph 14-12c is for a pattern of misconduct, commission of a serious offense, conviction by civil authorities, absence without leave, or other actions that a punitive discharge is authorized under the UCMJ.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

Volume 7A, chapter 35 of the DoD Financial Management Regulation states that to qualify for separation pay the service member who is involuntarily separated must meet each (emphasis added) of the following requirements:  

	1.  The member must have completed at least 6 but less than 20 years of service;

	2.  The member's separation is characterized as "honorable";

	3.  The member is being involuntarily separated through the denial of reenlistment under one of the following:

	a.  The member is fully qualified for retention but is denied reenlistment;

	b.  The member is fully qualified but is being denied reenlistment under a reduction in force;

	c.  The member is a Reserve officer who is being transferred to the Retired Reserve; or,

	d.  The member is denied reenlistment and accepts an earlier separation from active duty.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, and applicable law and regulations, it is concluded:

1.  The applicant was discharged for commission of a serious offense.  The fact that the ADRB determined that her characterization of service should be under honorable conditions has no bearing on her eligibility for separation pay.  The applicant did not then nor does she now meet the criteria for entitlement to separation pay since she was not denied reenlistment but was discharged due to her own misconduct.

2.  The correction of appropriate military records to show an RE code which would allow her to reenlist, in effect, constitutes a request for removal or waiver of those disqualifications which preclude reenlistment.  The applicant has provided no evidence that her discharge for misconduct was improper.  Therefore, there is no basis for changing the applicant's RE code.  

3.  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.

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

__LLS___  __WDP__  __BJE __  DENY APPLICATION

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

INDEX

CASE ID	AR2002072638	
SUFFIX		
RECON		
DATE BOARDED	20021217	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	100.03 	
2.	100.06	
3.	128.08	
4.		
5.		
6.