MEMORANDUM OF CONSIDERATION

	IN THE CASE OF

	BOARD DATE:           11 February 2000                 
	DOCKET NUMBER:   AR1999029427

	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. Richard H. Allen		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. George D. Paxson		Member	
	Mr. Thomas B. Redfern, III		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, upgrade of his general discharge (GD), to a fully honorable discharge.

APPLICANT STATES:  In essence, through his Representative in Congress, that he never used cocaine while on active duty.  He contends that the test procedures were flawed.  He was a good soldier, and submits a number of certificates show various training achievements and letters of reference at the time he was in the service.  He desires to become a policeman, but his discharge is preventing him from being accepted into some type of program.  

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

He enlisted in the Regular Army for 3 years on 3 December 1985.  He was trained as an Infantryman (military occupational specialty (MOS) 11B).  He also was trained as a parachutist and was assigned to Fort Bragg, North Carolina.  The highest rank he attained was private first class, pay grade E-3.  

While at Fort Bragg and Fort Benning, Georgia, where he underwent much of his training, he received a number of certificates of training, 50 and 100 mile march certificates , certificates of achievement and a letter of achievement.  All attested to his good record of service and significant achievements.  Nevertheless, he did receive one counseling from his supervising noncommissioned officer (NCO) in November 1988 for problems in handling his money.  He was advised to start a savings account and to not write checks when he did not have the money in his bank account.  Further, during the discharge process two more negative counselings (in July and August 1987) for performance were listed, but are not in his records.  

On 22 January 1988, he participated in a urinalysis sampling.  His urine sample was forwarded to the testing laboratory on 25 January 1988 and on 2 February 1988, the sample tested positive for use of cocaine.  His urine sample appears to have remained under positive signature and storage control throughout the process.  There is no record of his requesting a retest.

The results were reported to his unit.  On 16 February 1988, he accepted nonjudicial punishment under the provisions of Article l5, Uniform Code of Military Justice, imposed by a field grade officer, his battalion commander (a lieutenant 
colonel).  His punishment included reduction to pay grade E-1, to forfeit 
$135.00 pay, and to be restricted to his unit and to perform extra duty for 
15 days.  He did not appeal the punishment.  

On 25 March 1988, his battalion commander notified him that he was initiating discharge action under the provisions of chapter 14, (paragraph 14-12c), Army Regulation 635-200, by reason of misconduct/abuse of illegal drugs.  The commander indicated that would recommend a discharge under other than honorable conditions.  He stated at that time that the applicant’s performance of duty had been marginal.  

On 7 April 1988, the applicant consulted with legal counsel, did not waive his rights, requested a hearing by a board of officer, with representation by legal counsel and stated that he was submitting a statement in his own behalf, but it is not a matter of record.  However, there are two statements from NCO’s in his unit stating that he performed his duties well and a Letter of Appreciation from his unit commander, dated 5 February 1987, commending him for his performance of duty on a funeral detail.  

On the same date, he completed a second statement, after consulting with his legal counsel, which was a conditional statement that he would waive a hearing by a board of officers if he received discharge at least under honorable conditions (a GD).  He said again that he submitted a statement in his own behalf, but it is not a matter of record.  The three letters of support mentioned in the previous paragraph are included with the discharge packet.  

This latter statement appears to have been accepted, since on 15 April 1988, the battalion commander recommended approval of the discharge, under the provisions of chapter 14, Army Regulation 635-200 with a GD.  

On 18 April 1988, the acting commander of the applicant’s brigade (the separation authority) approved the discharge under the provisions of chapter
14, Army Regulation 635-200, by reason of misconduct-abuse of illegal drugs.  He directed the issuance of a GD.  

On 5 May 1988, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, section III (misconduct-drug abuse).  He was credited with 2 years, 5 months and 3 days active service and he had no lost time.  He had received the Army Service Ribbon and several marksmen badges. 

On 23 May 1994, the applicant personally appeared before the Army Discharge Review Board.  That board denied his request for upgrade of his discharge but did change the reason for his discharge to misconduct, Army Regulation 635-200, chapter 14,  in accordance with the discharge standards in effect in 1994, better known as “current standards.”  

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.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions  was considered normal, but a general or honorable discharge could be awarded at the discretion of the separation authority.  

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, in this case, has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The applicant has failed to present any definitive evidence, except his statement, that the drug testing procedures were in error or flawed.  In the absence of evidence to the contrary, the Board must presume the regularity of government operations.  

3.  Therefore, the Board concludes that 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.

4.  The applicant’s abuse of illegal drugs reduced the quality of his service below that warranting a fully honorable discharge.  The character of his discharge is considered appropriate based upon all the facts in the case.

5.  The applicant’s desire to enter into a law enforcement position in his community is commendable.  However, the Board does not grant relief solely for the purpose of gaining employment or enhancing employment opportunities.

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

__MKP__  __GDP__  __TBR___  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999029427	
SUFFIX		
RECON		
DATE BOARDED	20000211	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19880503	
DISCHARGE AUTHORITY	AR635-200, Chapter 14	
DISCHARGE REASON	A67.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	144.00	
2.	A01.13	
3.	A01.57	
4.	A92.17	
5.	A92.35	
6.	A94.45