MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            24 August 2000
	DOCKET NUMBER:   AR1999034418

	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:

	Mr. George D. Paxson		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Allen L. Raub		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 general discharge be upgraded to an honorable discharge.

APPLICANT STATES:  That he was discharged for testing positive (twice) for marijuana.  He states that he came from a broken home and grew up in an impoverished, racial environment.  He also states that he reported his drug abuse to a noncommissioned officer (NCO), however no action was taken to provide him treatment or assistance with his drug addiction.

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

On 6 April 1983, he enlisted in the United States Army Reserve (USAR) for 6 years in the pay grade of E-1.  He was ordered to active duty for training effective 14 April 1983.

The records show that the applicant was counseled ten times between 30 April 1983 and 1 June1983 for being disrespectful, lacking motivation, lacking self-discipline, displaying a poor attitude, displaying a “me first” attitude, displaying a total disregard for training and testing, failing to follow instruction, poor conduct and making verbal threats.  He was constantly told that his actions would result in punishment under the Uniformed Code of Military Justice (UCMJ) or separation under the Trainee Discharge Program (TDP).

Nonjudicial punishment (NJP) was imposed against him on 19 May 1983, for wrongfully communicating a threat to another soldier.  His punishment consisted of a forfeiture of pay and restriction.

On 16 June 1983, the applicant was discharged from the USAR under the TDP, under the provisions of Army Regulation 635-200, chapter 11 for Entry Level Status Performance and Conduct.  His service was uncharacterized, as he had only completed 2 months and 3 days of active duty as a Reservist.

On 13 March 1984, he enlisted in the Regular Army for 3 years in the pay grade of E-1.  He successfully completed his training as a multi-channel communications equipment operator.

The applicant had NJP imposed against him on 18 March 1985, for failure to go to his appointed place of duty on 12 February and 15 February 1985 and for pointing an M16A1 rifle, loaded with blank 5.56 ammunition, at his superior NCO and firing it at him.  His punishment consisted of a reduction in pay grade, a forfeiture of pay and extra duty.

On 18 March 1985, he received a Letter of Reprimand for testing positive for marijuana after a sample of his urine was tested for possible drug abuse.  He was told that another sample of his urine would be taken on an unannounced basis, no sooner than 30 days from the date of his last urinalysis (7 February 1985).  He was also told that if he tested positive again he would be eliminated from the service under the provisions of Army Regulation 635-200, chapter 14 for misconduct and/or possible disciplinary action under the UCMJ.  The applicant was told that, in an effort to help him with alternatives to his drug abuse problem, he was being referred to Fort Hood Drug and Alcohol Abuse Program for a formal screening interview.

The applicant underwent another urinalysis on 4 April 1985 and he again tested positive for marijuana use.

On 24 April 1985, the applicant was barred from reenlistment as a rehabilitative measure used to identify substandard individuals.  He was informed that he should strive to prove himself worthy of retention in the Army.

On 8 May 1985, the applicant was enrolled in the Fort Hood Alcohol and Drug Rehabilitation Program.

On 30 July 1985, the applicant was notified that action to eliminate him from the Army had been initiated under the provisions of Army Regulation 635-200, chapter 14.  The commander cited misconduct and abuse of illegal drugs as the reason for the proposed elimination action.  

The applicant acknowledged receipt of the proposed elimination on 12 August 1985 and he opted to submit a statement in his own behalf.  In his statement, he indicated that he did test positive twice for marijuana use and he also knew that he would be eliminated from the Army after a second positive urinalysis.  He also states that he believed that he would be given an opportunity to be rehabilitated prior to being eliminated from the Army.  He further stated that he believed that he was discriminated against as a soldier and as a person because he was not given a fighting chance to become a better soldier.

The recommendation for discharge was approved by the appropriate authority on 20 September 1985.  Accordingly, on 9 October 1985, he was discharged under honorable conditions, under the provisions of Army Regulation 635-200, chapter 14 for misconduct as a result of drug abuse.  He had completed 1 year, 6 months and 27 days on active duty this period and he was furnished a General Discharge Certificate.

On 27 August 1986, 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 therefor were appropriate considering all the facts of the case.

3.  There is no evidence of record to support the applicant’s contention that he reported his drug abuse and that no action was taken to provide him treatment or assistance with his drug addiction.  The evidence of record clearly shows that he was being referred to the Fort Hood Drug and Alcohol Abuse Program for treatment and that he tested positive a second time prior to his enrollment in the program.  In accordance with Army Regulation 635-200, chapter 14 he was properly discharged after he tested positive a second time.  Although a discharge under other than honorable conditions is normally considered appropriate, he was furnished a discharge under honorable conditions.

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

___gp___  __alr  ___  ___clg __  DENY APPLICATION

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

INDEX

CASE ID	AR1999034418	
SUFFIX		
RECON		
DATE BOARDED	2000/08/24	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	1985/10/09	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	626	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  661	144.6700	
2.  673	144.6770	
3.		
4.		
5.		
6.