MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           14 November 2002                  
	DOCKET NUMBER:   AR2002075194

	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. Arthur A. Omartian 		Chairperson	
	Mr. John P. Infante		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:  In effect, upgrade of his discharge.

APPLICANT STATES:  That he has made mistakes and since the Army he has been a good citizen and has been married for 13 years with two children.  He has had no trouble with the law, not even a speeding ticket.  When he had a Federal Bureau of Investigation background check he was told that he was a deserter, which is not true.  He also states that he never committed any serious crime.  He submits a statement in his own behalf and a copy of his DD Form 214 (Certificate of Release from Active Duty) in support of his application.

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

He enlisted in the Regular Army for 4 years as a private, pay grade E-1, on 2 October 1985, with prior service.

On 14 January 1986, he was punished under Article 15, Uniform Code of Military Justice (UCMJ), for wrongful use of marijuana.  His punishment included forfeiture of pay for 2 months and extra duty and restriction for 45 days.

He attained the rank of private first class, pay grade E-3, on 1 August 1986.

On 24 February 1987, he was punished under Article 15, UCMJ, for wrongful use of marijuana.  His punishment included reduction to pay grade E-2, forfeiture of pay, extra duty and restriction for 45 days.

On 4 March 1987, the applicant’s commander recommended action to separate the applicant for commission of a serious offense—abuse of illegal drugs.  He stated that the action was being taken following serious offenses of wrongful use of marijuana between 15 November and 25 November 1985 and 30 December 1986 and 8 January 1987.

On the same day, the applicant acknowledged through counsel receipt of the proposed separation.  He waived his rights to personal appearance before a board of officers and acknowledged he understood the effects of this type of discharge.  He elected to submit a statement in his own behalf in which he stated that he always tried to give the Army 100% and that he had a drug problem.  It would take restraint from him and professional counseling to cure this disease.  He never did realize he had a problem, but he knows now that he needs help.  He also stated that by having a bad mark on his records when he goes into the civilian world would make it hard, if not impossible to find a stable job.

On 10 March 1987, a mental evaluation cleared the applicant for any administrative action deemed appropriate by his command.

On 16 March 1987, a Bar to Reenlistment was initiated against the applicant for his disregard for the UMCJ and the efforts of his command to combat drug use.  His commander stated that the applicant has shown acceptable duty performance but not beyond what he is told to do, and requested the Bar to Reenlistment be approved for the continued misconduct/drug abuse by the applicant.

On 18 March 1987, the appropriate authority approved the Bar to Reenlistment.  The applicant did not appeal.

On 20 April 1987, the appropriate authority approved his discharge and directed reduction to pay grade E-1 and issuance of a General Discharge (GD) Certificate.

He was discharged on 28 April 1987, under the provisions of Army Regulation 635-200, Chapter 14, Misconduct-Commission of a Serious Offense and issued a GD Certificate.  He was credited with 1 year, 6 months and 27 days of net active service this period.

His records show no periods of absence without leave or that he was a deserter.

There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within it's 15-year statute of limitations.

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, 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.

Paragraph 3-7 of this regulation 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; however, the applicant’s separation for misconduct was not based on being a deserter, he was discharged for commission of a serious offense--illegal drug abuse.  By his own admission he agreed with the reason for his discharge and with the action by his commander to separate him from the service with the exception of not receiving an honorable discharge.  However, the type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  While the Board has taken cognizance of the applicant's good post-service conduct, his marriage and children, none of these factors, either individually or in sum, warrants the relief requested.

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

_AAO___  _RKS___  __JPI___    DENY APPLICATION

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

INDEX

CASE ID	AR2002075149	
SUFFIX		
RECON	 	
DATE BOARDED	20021114	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	A70	
2.		
3.		
4.		
5.		
6.