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Decision Text

ARMY | BCMR | CY1997 | 9706507
Original file (9706507.rtf) Auto-classification: Denied

APPLICANT REQUESTS : The applicant requests that his general under honorable conditions discharge be upgraded to an honorable discharge.

 APPLICANT STATES : The applicant states, in effect, that his general under honorable conditions discharge is erroneous. He cites the U.S. District Court for the District of Columbia in “Giles v. Secretary of the Army”, dated 27 November 1979, in which a former Army service member is entitled to an honorable discharge if a less than honorable discharge is issued to him in an administrative proceeding in which the Army introduced evidence developed by or as a direct or indirect result of compelled urinalysis testing administered for the purpose of identifying drug abusers.

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

He was born on 21 May 1965. He completed 11 years of formal education but later completed his high school GED. He entered the Delayed Entry Program on 25 January 1985 and enlisted in the Regular Army on 5 March 1985 for 4 years. He completed basic training and Advanced Individual Training and was awarded Military Occupational Specialty 63S (Heavy Wheel Vehicle Mechanic).

Between 17 December 1987 and 17 June 1988, the applicant received four counseling statements for failure to repair and failure to follow instructions.

On 5 July 1988, the applicant accepted non-judicial punishment (NJP) under Article 15, Uniformed Code of Military Justice (UCMJ) for wrongful use of cocaine and failure to repair. His imposed punishment was a reduction to pay grade E-1, a forfeiture of $335 pay for 2 months, 45 days extra duty and 45 days restriction, suspended.

On 2 August 1988, the applicant completed a separation physical and was found qualified for separation.

An undated mental status evaluation found the applicant mentally responsible and mentally capable to understand and participate in board proceedings.

On 3 August 1988, the applicant accepted NJP under Article 15, UCMJ for wrongful use of cocaine. His imposed punishment was a forfeiture of $335 pay for 2 months, and 45 days extra duty and restriction.

On 17 August 1988, the applicant’s company commander initiated separation proceedings under Chapter 14, Army Regulation 635-200 for misconduct - abuse of illegal drugs.

On 17 August 1988, the applicant conditionally waived consideration of his case by a board of officers, or appearance before a board of officers. (He would not be eligible for board consideration if he received a discharge under honorable conditions.) He elected not to submit a statement on his behalf.

On 31 August 1988, the appropriate authority approved the request and directed the applicant receive a general discharge under honorable conditions.

The applicant was discharged on 8 September 1988, in the pay grade E-1, under Army Regulation 635-200, Chapter 14, for misconduct - abuse of illegal drugs, and was given a general discharge under honorable conditions. He had completed 3 years, 6 months and 4 days of creditable active service and had no lost time.

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.

On 21 November 1985, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade of his discharge.

On 24 February 1998, the senior legal advisor to the Army Review Board Agency gave an advisory opinion that the court order the applicant cites applies only to certain discharges granted on or before the date of the court order. The applicant’s discharge was granted several years after that order; therefore, he does not qualify for an upgrade on that basis.

 DISCUSSION : Considering all the evidence, allegations and information presented by the applicant, together with the evidence of record, applicable law and regulations and advisory opinion, it is concluded:

1. 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.

2. 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. Based upon a legal advisory opinion, the applicant’s discharge does not fall under the criteria of “Giles v. the Secretary of the Army.”.

3. The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.

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

 DENY APPLICATION




 Karl F. Schneider
                                                      Acting Director
                                                     

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