APPLICANT REQUESTS: In effect, that he be reinstated to active duty or retired for length of service.
APPLICANT STATES: In effect, that the administrative separation board improperly used disciplinary information from his prior enlistments as a basis to unjustly discharge him from the service.
EVIDENCE OF RECORD: The applicant's military records show:
He initially enlisted in the Illinois Army National Guard on 2 February 1973. On 24 March 1976 he was involuntarily ordered to active duty for a period of 19 months.
The applicant reenlisted on 30 January 1978 and has remained on active duty continuously through a series of reenlistments. He was promoted to the pay grade of E-6 on 4 October 1984.
On 6 May 1993, nonjudicial punishment (NJP) was imposed against the applicant for the wrongful use of marijuana. His punishment consisted of a reduction to the pay grade of E-5, a forfeiture of pay, and 45 days extra duty. The applicant appealed the punishment and his appeal was denied on 11 May 1993.
The applicant was notified on 20 September 1993 that he was to appear before an administrative separation board to determine if he should be separated for misconduct before the expiration of his term of service (ETS).
A memorandum prepared by the legal advisor for the board members on 6 October 1993 advised the members on the proper use of evidence received during administrative elimination board proceedings. The memorandum specified that information that adversely reflected on the applicant that occurred during a previous enlistment could only be used in determining whether or not he should be retained or separated from the service. Such information could not be used in determining his characterization of service.
The administrative separation board convened on 7 October 1993 at Fort Bragg, North Carolina. A review of the board proceedings indicates that the applicants defense counsel made reference to the applicants prior honorable service and the recorder (prosecutor) attempted to enter into the record the applicants records of NJP and substandard evaluation reports. The defense counsel objected to the introduction and use of information from previous enlistments and the board was adjourned at that time to consider the objection. The legal advisor advised the board members on the acceptance of the evidence from prior enlistments and allowed it to be entered into the record.
The administrative separation board recommended that the applicant be discharged from the service under the provisions of Army Regulation 635-200, chapter 14-12c for misconduct and that he be furnished with an Honorable Discharge Certificate. The appropriate authority approved the findings and recommendations of the administrative separation board on 19 October 1993.
Accordingly, the applicant was honorably discharged under the provisions of Army Regulation 635-200, chapter 14-12c for misconduct on 22 November 1993. He had served 17 years, 11 months, and 29 days of total active service.
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 ETS. 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 for separation after a second offense.
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 applicants administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.
2. The applicants contention that the administrative separation board improperly considered evidence from previous enlistments is without merit. The administrative separation board was allowed to consider such evidence in determining whether or not he should be separated from the service but could not consider it when determining the characterization of service. Inasmuch as the board recommended that the applicant receive an honorable discharge, it is apparent that the board acted appropriately in terms of how evidence could be considered.
3. The type of discharge directed and the reasons therefor were appropriate considering all of the facts of the case.
4. The applicant has failed to convince the Board through the evidence submitted or the evidence of record that his discharge was unjust and that he should be reinstated or retired for length of service.
5. In view of the foregoing, there is no basis for granting the applicants 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
DENY APPLICATION
Karl F. Schneider
Acting Director
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