ABCMR Memorandum of                                                             AR2002082805
Consideration (cont)

MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            14 August 2003
	DOCKET NUMBER:   AR2002082805

	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. Jessie B. Strickland | | Analyst

The following members, a quorum, were present:

| Mr. Raymond V. O’Connor, Jr. | | Chairperson
| Mr. James E. Anderholm | | Member
| Ms. Linda M. Barker | | 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 discharge under other than honorable conditions be upgraded to honorable.

APPLICANT STATES:  That he was falsely accused of using drugs and that he has since been diagnosed as being schizophrenic.  He further states that he began hearing voices after visiting two Nazi Death Camps in Germany in 1982.

COUNSEL CONTENDS:  In effect, that the applicant's record of service and his medical condition should be considered with a view toward upgrading his discharge.

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

He enlisted in Dallas, Texas, on 13 August 1981 for a period of 4 years, training as a cannon crewman, assignment to the 1^st Infantry Division and a $5,000 enlistment bonus.  He completed his basic combat training at Fort Knox, Kentucky, and was transferred to Fort Riley, Kansas, for his advanced individual training and follow-up assignment.  He was advanced to the pay grade of E-4 on 1 December 1983.

On 6 November 1984, nonjudicial punishment was imposed against him for repeatedly being absent from his place of duty.  His punishment consisted of extra duty and restriction.

On 14 March 1985, the applicant underwent a mental status evaluation and was cleared for separation.

On 5 April 1985, nonjudicial punishment was imposed against him for the wrongful use of marijuana between 19 January and 19 February 1985.  His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of pay, extra duty and restriction.

On 10 April 1985, the applicant's commander notified him that he was recommending him for separation from the service under the provisions of Army Regulation 635-200, chapter 14, for a pattern of misconduct.  He cited as the reason for his recommendation that the applicant had tested positive for marijuana twice. 

After consulting with counsel, the applicant waived his rights and elected not to submit a statement in his own behalf.

The commander submitted the recommendation for discharge and the appropriate authority approved it on 25 April 1985 and directed that he be discharged under other than honorable conditions.

Accordingly, he was discharged under other than honorable conditions on 30 April 1985, under the provisions of Army Regulation 635-200, paragraph     14-12c, for misconduct – commission of a serious offense.  He had served 3 years, 8 months and 18 days of total active service.

On 9 January 1986, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  He stated to that board at the time of is application that he believed that his discharge was unfair considering his overall record.  He also stated that he admitted to using marijuana during the occasions for which he tested positive and he was sorry for what he did.  He went on to state that he was amazed at what effect two positive urinalysis could have on his career and admitted that he had brought on himself.  He requested that the board consider the fact that he had straightened himself out and give him another chance.  

The ADRB determined that his report of separation (DD Form 214) reflected the incorrect narrative reason for his discharge and changed it from "Misconduct – commission of a serious offense" to "Misconduct – Pattern of Misconduct".  The ADRB denied his request for an upgrade of his discharge on 21 July 1986.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories include minor infractions, a pattern of misconduct, frequent involvement in incidents of a discreditable nature with civil and/or military authorities, commission of a serious offense, conviction by civil authorities, desertion or absence without leave.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  

Paragraph 14-12c (2) provides specifically for the separation of enlisted soldiers for misconduct based on the abuse of illegal drugs.  It states, in pertinent part, that abuse of illegal drugs is serious misconduct that may warrant separation action based on commission of a serious offense.  In the event that there are mitigating factors, a single drug offense may be combined with one or more minor disciplinary infractions or incidents of misconduct and processed for separation.  The commander makes the determination to process first-time drug offenders serving in the pay grades of E-1 to E-4; however, separation processing is mandatory for second-time offenders. 

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 procedural errors which would tend to jeopardize his rights.
2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

3.  The Board has noted the applicant's contention that he was falsely accused of using drugs and finds it to be without merit and unsupported by the evidence of record.

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

___ja ___  __rvo ___  __lb  ____  DENY APPLICATION

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

INDEX

CASE ID | AR2002082805
SUFFIX |
RECON | YYYYMMDD
DATE BOARDED | 2003/08/14
TYPE OF DISCHARGE | UOTHC
DATE OF DISCHARGE | 1985/04/30
DISCHARGE AUTHORITY | AR635-200. CH14
DISCHARGE REASON | MISCONDUCT
BOARD DECISION | DENY
REVIEW AUTHORITY |
ISSUES         1.  686 | 144.6000/A60.00
2. |
3. |
4. |
5. |
6. |