MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           27 June 2000                    
	DOCKET NUMBER:   AR1999034342

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Mark D. Manning 		Chairperson	
	Mr. Walter T. Morrison 		Member	
	Mr. Curtis L.Greenway 		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, that his general discharge be upgraded to honorable, and the authority, separation code, reenlistment code, and reason for his discharge be changed accordingly.  He also requests that he be compensated for his college educational costs, compensated for various wrongs done him, and compensated for lost salary due to the information contained on his DD Form 214.  He requests that his rank be restored, and he receive           10 years of salary, with interest, tax free, based on that restored rank.

APPLICANT STATES:  That he was wrongfully administered a urinalysis test, but nevertheless, he may have come in contact with the drug from food in a civilian’s home, without his knowledge.  He received nonjudicial punishment under     Article 15, UCMJ.  Until that time, his record was untainted, as indicated by his counseling statements.  He received nonjudicial punishment a second time for missing an appointment; however, his statements and witness’s statements were not considered. 

He had 90 days left on his enlistment when he was notified that action was being taken to separate him for misconduct.  He was referred to a Judge Advocate General officer, and stated that he knew nothing about two of the nonjudicial punishment actions in his file; nonetheless, that officer completed the legal portion of the administrative action.  He received a cursory psychological evaluation.  He made a statement in his behalf, but only part of that statement was seen by his commander.  He was discharged, without certain benefits, his college education stifled, college funds stolen, and he was stymied in his attempt to get a good job and a commission in the reserves.

His counseling statements show that he was an outstanding soldier.  He strived for excellence, completed ranger competency school, and volunteered for numerous assignments and activities.  He also was attached to foreign military [units], such as France and Germany.  He was recommended for awards that were downgraded to certificates of achievement.

He has no desire to make a public affair out of an embarrassing situation, but his next alternative would be to file civil suit, implicating people.  His request for compensation is minimal, and he is willing to negotiate the settlement amount, but not the corrective action on his records that he is requesting.  

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

The applicant enlisted in the Army for three years on 16 September 1986, completed training as a medical corpsman, and in April 1987 was assigned to an engineer battalion in Germany.  He was promoted to pay grade E-4 on                
1 February 1988.

On 3 February 1989 the applicant received nonjudicial punishment under     Article 15, Uniform Code of Military Justice (UCMJ) for failure to go to his appointed place of duty.   

On 17 May 1989 the applicant received nonjudicial punishment for wrongful use of marijuana, and was reduced to pay grade E-3.

The applicant’s record shows inclusion of two other records of nonjudicial punishment; however, both of those show they were administered to an individual with the same last name, but a different first name, different social security number, and different unit, than those of the applicant.  NOTE:  Those records will be removed from his Official Military Personnel File (OMPF) after review of his case by this Board.

A 25 May 1989 report of medical examination shows that the applicant was medically qualified for separation with a physical profile serial of 1 1 1 1 1 1.  In the report of medical history he furnished for the examination, the applicant stated that he was in good health. 

A 6 June 1989 report of mental status evaluation indicates that the applicant was mentally responsible, had the mental capacity to understand and participate in proceedings, and met the medical standards for retention in the Army.  He did not have a psychiatric disease or disorder that warranted disposition through medical channels and was psychiatrically cleared for any administrative action deemed appropriate.

On 20 June 1989 the applicant’s commanding officer notified the applicant that he was initiating action to discharge him for a pattern of misconduct, under the provisions of Army Regulation 635-200, paragraph 14-12b.  That officer informed the applicant that he had tested positive for marijuana on or about                     21 March 1989 and that under the provisions of paragraph 14-12c of Army Regulation 635-200, soldiers in the grades of E-1 to E-4 who are first time drug offenders may be separated from the Army.  He informed the applicant that he was recommending that he receive a general discharge.

The applicant consulted with counsel, and stated that he understood the basis for the contemplated action to separate him for commission of a serious offense under the provisions of Army Regulation 635-200, paragraph 14-12c, its effects, the rights available to him, and the effect of any action taken by him in waiving those rights.  He stated that he understood the nature and consequences of the general discharge that he might receive.

He made a statement to the effect that it was his first offense under the UCMJ, and he had already been punished, and that the administrative action would be too harsh.  He was approaching his separation date, and he would be attending college after his discharge.  If he received a general discharge he would have difficulty in acceptance and in employment.  He would have paid the price twice.  In the original proceedings, the crimes [records of nonjudicial punishment] of another person was attributed to him, and that was a contributing factor against him.  He had only had four bad counseling statements over a 26 month period.  His attitude was totally serious when involved in his work; however, on the military side his attitude was sometimes questionable during his off duty hours, but he completed all missions, without causing problems.  He did his job well.  He referred himself to the CCC (Community Counseling Center) because of his fear of using drugs and alcohol, being as it was so prevalent among his fellow workers.  He enrolled in order to keep away from drugs.  He ate some food at a civilian friend’s house, without knowledge that it contained some drugs.  After consumption, he was informed of that fact.  A few days later he tested positive on a urinalysis test.  He made a mistake and has paid for it.  He put his life in turmoil and in danger, and requested that the administrative proceedings be cancelled, or that he receive an honorable discharge.   

On 28 June 1989 the applicant’s commanding officer recommended to the separation authority that the applicant be discharged from the Army and that he receive a general discharge.  Included with that recommendation were three letters from NCO’s attesting to his outstanding performance of duty, integrity, and his positive attitude.  Also included were 15 counseling forms, most of which were for performance.  Most of those forms indicated that the applicant’s job performance was good, and even outstanding, but also indicated he needed to improve in his appearance.  He was counseled in August 1988 because of providing poor support [to a unit] and for having a poor attitude.  He was counseled in January 1988 because of a bad check.  He was counseled in      July 1988 for his off duty conduct and for having four dishonored checks.  That recommendation also included a copy of a letter suspending his check cashing privileges in the Class VI system.  It included a copy of an 11 March 1988 letter suspending his check cashing privileges.  His check cashing privileges were restored on 10 September 1988.  It also included a copy of a letter from the CCC, in which the director stated that because the applicant had tested positive for marijuana, he appeared to lack motivation, and his potential for successful rehabilitation appeared to be poor.  With that recommendation were the two records of nonjudicial punishment action that did not pertain to the applicant.

On 6 July 1989 the Staff Judge Advocate reviewed the recommendation for separation and found it to be legally sufficient.  

On 11 July 1989 the separation authority approved the recommendation.  The applicant was discharged for misconduct/abuse of illegal drugs on 21 July 1989.  He had 2 years, 10 months, and 6 days of service.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows a separation code of “JKK” and a reenlistment code of “RE 3.”    
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.   Paragraph 14-12c(2) states that abuse of illegal drugs is serious misconduct and that first-time drug offenders, grades E-1 to E-4 may be processed for separation as appropriate.  The separation reason in all separations authorized by that paragraph will be “misconduct-abuse of illegal drugs.”  A discharge under other than honorable conditions is normally appropriate for a soldier discharged for misconduct.  However, the separation authority may direct a general discharge if such is merited by the soldier’s overall record.

The maximum punishment authorized by the Manual for Courts-Martial for the wrongful use of marijuana is a dishonorable discharge, 2 years confinement, and forfeiture of all pay and allowances.

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 record was not untainted prior to receiving nonjudicial punishment in May 1989 for wrongful use of marijuana.  He had previously received nonjudicial punishment in February 1989, was counseled on occasions for his poor appearance, despite his outstanding job performance, was counseled for his off duty conduct, and counseled on one occasion for providing poor support to a unit, and for having a poor attitude.  Additionally, the applicant had his check cashing privileges suspended, and was counseled in that regard.  

2.  Two records of nonjudicial punishment that were included in the recommendation that the applicant be discharged for misconduct, did not pertain to the applicant, and should not have been included with that recommendation.  Nonetheless, this Board believes that the applicant’s commanding officer would still have initiated administrative discharge proceedings, and that the separation authority would have approved his discharge for misconduct, absent those two records.  The applicant was not a stellar soldier.   

3.  Consequently, this Board concludes that the applicant’s discharge for misconduct, for use of marijuana, was warranted, and that the character of his discharge was commensurate with his overall record.  The Board notes that the applicant could have received a discharge under other than honorable conditions.  Therefore, the applicant’s request to upgrade his discharge is denied.  Thus, there is no basis to grant any of his other requests contained in his application. 

4.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   
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 that 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

___wtm__  ___mdm_  ___clg___  DENY APPLICATION

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

INDEX

CASE ID	AR1999034342	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000627	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.00	
2.		
3.		
4.		
5.		
6.