MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            28 January 2003
	DOCKET NUMBER:   AR2002072669

	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:

	Ms. Karol A. Kennedy		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Tracey L. Pinson		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 discharge under other than honorable conditions be upgraded to an honorable discharge.

APPLICANT STATES:  In effect, that his discharge should be upgraded because he was discharged due to inaccurate urinalysis results and because he has never taken or used any drugs other than that prescribed by a doctor.  He further states that he has become a productive member of society and desires an upgrade of his discharge so he can purchase a home and pursue a career in the intelligence field.

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

He enlisted on 1 August 1978 for a period of 4 years and training as a power generation and wheel vehicle mechanic.  He successfully completed his training and was advanced to the pay grade of E-4 on 1 July 1980.

On 8 June 1982, while stationed at Fort Bliss, Texas, he reenlisted for a period of 4 years and training as an electronic warfare intercept systems repairer.  On 8 January 1983, he was transferred to Fort Devens, Massachusetts, to undergo his training.  He was promoted to the pay grade of E-5 on 1 August 1983.

On 24 April 1984, nonjudicial punishment (NJP) was imposed against him for driving a motor vehicle while drunk.  His punishment consisted of a forfeiture of pay.  He also received a general officer letter of reprimand, which was directed for filing in his Official Military Personnel File (OMPF).

On 1 August 1983, NJP was imposed against him for failure to go to his place of duty.  His punishment consisted of extra duty for 7 days.

On 10 August 1984, the applicant’s commander notified him that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200, for misconduct due to a pattern of misconduct.  He cited as the basis for his recommendation, two positive urinalysis results for cocaine, one positive urinalysis for marijuana, the applicant’s sworn statement that he used drugs, statements from witnesses who were present when he made his sworn statement regarding his drug usage, failure to respond to counseling, his disciplinary record, and his possession of marijuana. 

On 27 August 1984, NJP was imposed against him for the wrongfully possession of marijuana.  His punishment consisted of a reduction to the pay grade of E-4 and a forfeiture of pay.

After consulting with counsel, the applicant elected to exercise his right to appear before a board of officers.  He made this election on 16 August 1984; however, on 9 October 1984, after again consulting with counsel, he waived his right to appear before a board of officers and elected to submit a statement in his own behalf.  He indicated that he had served the Army faithfully and deserved a better characterization than under other than honorable conditions.  He also indicated that the evidence against him was insufficient for such a characterization and that he did not use drugs knowingly. 

The appropriate authority (a major general) approved the recommendation for discharge on 1 November 1984 and directed that he be discharged under other than honorable conditions.

Accordingly, he was discharged under other than honorable conditions on 9 November 1984, under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct – pattern of misconduct.  He had served 6 years, 3 months and 9 days of total active service.

There is no indication in the available records to show that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories include minor infractions, a pattern of misconduct, frequent involvement in incidents of a discreditable nature with civil and/or military authorities, commission of a serious offense, conviction by civil authorities, drug abuse, and desertion or absence without leave.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  Additionally, there was not then, nor is there now, any provisions for an automatic upgrade of such a discharge.

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 or unjust.  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 procedural errors, which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

3.  The board has noted the applicant’s contentions.  However, they are not supported by the evidence submitted with his application or the evidence of record.  The evidence of record clearly shows that he admitted his drug use and he was found in possession of drugs as well.  Accordingly the Board finds no evidence of error or injustice in his case. 

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

__kak___  __mm___  ___tp ___  DENY APPLICATION

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

INDEX

CASE ID	AR2002072669	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2003/01/28	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1984/11/09	
DISCHARGE AUTHORITY	AR635-200/ch14	
DISCHARGE REASON	Misconduct	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  626	144.6000/a60.00	
2.		
3.		
4.		
5.		
6.