MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            31 July 2003
	DOCKET NUMBER:   AR2003086448

	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. Deyon D. Battle		Analyst	

The following members, a quorum, were present:

	Ms. Gail J. Wire		Chairperson	
	Ms. Karen A. Heinz		Member	
	Mr. Robert Duecaster		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 a general discharge.

APPLICANT STATES:  That his exposure to cocaine was the result of other individuals smoking around him while he was attending a party.  He states, in effect, that he inhaled the smoke and then he tested positive for cocaine use, which was the reason why the level of cocaine found in his system was very low. He states that he has never directly used cocaine and that he is now seeking veterans benefits for a shoulder injury, which was incurred while he was on active duty.

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

On 18 January 1977 he enlisted in the Army for 3 years in the pay grade of E-1.  He successfully completed his training as an infantryman.  He was promoted to the pay grade of E-2 on 17 March 77, to pay grade E-3 on 12 May 1977 and to pay grade E-4 on 1 May 1978.  He completed 2 years, 6 months and 6 days of total active service and he remained on active duty through a series of continuous reenlistments.  He went on to be promoted to the pay grade of E-5 on 11 December 1979 and to pay grade E-6 on 21 July 1982.

On 18 December 1985, the applicant was convicted by a special court-martial of wrongfully using marijuana.  He was sentenced to a reduction to the pay grade of E-5, a forfeiture of pay in the amount of $200.00 per month and to be reprimanded.

Nonjudicial punishment (NJP) was imposed against the applicant on 29 January 1987, for wrongfully using some amount of cocaine.  His punishment consisted of a reduction to the pay grade of E-4 and a forfeiture of pay in the amount of $509.00.

On 23 February 1987, the applicant was counseled by his commanding officer (CO) regarding testing positive on a urinalysis that he had taken on 23 December 1986.  During the counseling session his CO informed him that he must be processed for separation under the provisions of Army Regulation 635-200, chapter 14-12(c) for misconduct based on commission of a serious offense and for a pattern of misconduct based on a positive urinalysis for marijuana.  His CO also informed him that his conduct could not and definitely would not be tolerated from noncommissioned officers in his unit and that he should understand the affects of a less than fully honorable discharge.

Accordingly, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 14-12(c) for misconduct based on commission of a serious offense – use of illegal drugs.  He 

acknowledged receipt of the notification on 24 February 1987.  After consulting with counsel, he waived his right to a personal appearance before an administrative separation board and he opted not to submit a statement in his own behalf.

The appropriate authority approved the recommendation for discharge on 29 March 1987.  Accordingly, on 24 April 1987, the applicant was discharged under other than honorable conditions, under the provisions of Army Regulation 635-200, chapter 14-12(c) for misconduct based on drug abuse.  He had completed 10 years and 3 months of total active service.

On 13 May 1994, the Army Discharge Review Board denied the applicant’s 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.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors, which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The Board has noted the applicant’s contentions.  However, the evidence of record clearly shows that he was initially convicted by a special court-martial of using cocaine.  He tested positive for marijuana on a urinalysis and as a result, he had NJP imposed against him.  In view of the applicant's acts of indiscipline, his discharge was properly characterized.

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

___rd ___  ___kh___  ___gw___  DENY APPLICATION

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

INDEX

CASE ID	AR2003086448	
SUFFIX		
RECON		
DATE BOARDED	2003/07/31	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1987/04/24	
DISCHARGE AUTHORITY	AR 635-200, CH 14-12(c)	
DISCHARGE REASON	626	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  660	144.6600/DRUG ABUSE	
2.		
3.		
4.		
5.		
6.