MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           7 March 2002                  
	DOCKET NUMBER:   AR2001062116

	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. Stephanie Thompkins		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. John P. Infate 		Member	
	Ms. Regan K. Smith		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, under honorable conditions, be upgraded to honorable and deletion of “Abuse of Illegal Drugs” on his discharge document (DD Form 214).

APPLICANT STATES:  That during his service his wife was sick and he had to care for her.  He also states that somehow he failed a urinalysis and he was busted for marijuana, which he did not use.  After his second positive urinalysis, he finished his time and was discharged.  An operations officer advised him at the time of discharge that in 6 months his discharge would be changed to an honorable discharge automatically.  He submits a copy of his “Application for Review of Discharge or Dismissal from the Armed Forces of the United States” (DD Form 293), a detailed letter from himself, and copies of statements of support dated 1986 in support of his request. 

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

He enlisted in the Regular Army as a private, pay grade E1 on 11 July 1983.

He attained the rank of specialist, pay grade E-4, on 1 September 1984.

On 27 February 1985, he was punished under Article 15, Uniform Code of Military Justice (UCMJ), for wrongful use of marijuana.  His punishment included reduction to pay grade E-3, forfeiture of pay and extra duty.

On 9 May 1986, he was punished under Article 15, Uniform Code of Military Justice (UCMJ), for wrongful use and possession of some amount of marijuana.  His punishment included reduction to private, pay grade E-2, forfeiture of pay and extra duty.

On 16 May 1986, his command initiated action to separate him from the service for misconduct, abuse of illegal drugs.  On 23 May 1986, his commander recommended he be separated and requested rehabilitation requirements be waived since rehabilitation would not produce the quality soldier desired by the United States Army.

On 19 May 1986, after consulting with legal counsel, the applicant waived his rights to have his case heard by a board of officers.  He elected not to submit a statement in his own behalf and acknowledged he understood the possible effect of a general discharge and the results of the issuance of such a discharge.  He also acknowledged that he may make application to the Army Discharge Review Board (ADRB) or the Army Board for Correction of Military Records (ABCMR) for an upgrade of his discharge and that an act of consideration by either board does not imply that his discharge will be upgraded.

On 5 June 1986, the appropriate authority approved his request for discharge and directed that a general discharge be furnished.

He was separated on 27 June 1986, under the provisions of Army Regulation 635-200, chapter 14, Abuse of Illegal Drugs.  He had a total of 2 years, 11 months and 17 days net active service.

There is no evidence of record that the ADRB received the applicant’s DD Form 293 for review and consideration.

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, and 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 is normally appropriate for a soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

Army Regulation 635-200, paragraph 3-7 provides that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious, that any other characterization would be inappropriate.

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 view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge.  He has not shown error, injustice, or inequity for the relief he now requests.  

2.  The Board has noted his contentions that he did not use marijuana and that his discharge would be upgraded automatically 6 months after his discharge to honorable.  However, the applicant’s records show he received two Article 15’s for wrongful use of marijuana for which he received and accepted punishment.  He was afforded the opportunity to submit statements in his own behalf, but he declined to do so.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.

3.  The Board also notes that the applicant acknowledged at the time of his discharge he understood that he would need to apply to the ADRB or ABCMR for an upgrade of his discharge and that any such consideration by either board would not automatically upgrade his discharge to honorable. 

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

_jpi___  _rks____   _rvo____        DENY APPLICATION

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

INDEX

CASE ID	AR2001062116	
SUFFIX		
RECON		
DATE BOARDED	20020702	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.000	
2.		
3.		
4.		
5.		
6.