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ARMY | BCMR | CY1997 | 9710101
Original file (9710101.rtf) Auto-classification: Denied
APPLICANT REQUESTS: In effect, that his general under honorable conditions discharge be upgraded to an honorable discharge.
APPLICANT STATES : In effect, that after 7 years of being an outstanding soldier and passing all his urinalysis tests during those years, he was told he came up positive for cocaine while in Panama. He never used drugs.

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

He enlisted in the Regular Army on 10 August 1982 and was honorably discharged on 12 June 1986 for the purpose of immediately reenlisting on 13 June 1986 for 4 years.

On 6 September 1989, the applicant received a bar to reenlistment. His commander had cited one Article 15 received during his initial enlistment (disrespectful in language towards a non-commissioned officer), two dishonored checks and two consecutive failures of his skill qualification test.

The applicant had been counseled on several occasions for such infractions as indebtedness; arguing with a non-commissioned officer, failing to go to his appointed place of duty on time, failing to make formation and reporting to work in the incorrect uniform.

On 12 September 1989, the applicant accepted non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for wrongful use of cocaine sometime between 25 July and 17 August 1989 as shown by his testing positive for the drug on a urinalysis test. The applicant did not appeal the Article 15.

On 25 September 1989, the applicant completed a mental status evaluation. No condition which would warrant disposition through medical channels was found. He was cleared for any administrative action deemed appropriate by his command.

On 20 October 1989, the applicant completed a separation physical and was found qualified for separation.

On 20 October 1989, the commander initiated separation action under the provisions of Army Regulation 635-200, Chapter 14 for misconduct.

On 20 October 1989, the applicant acknowledged the separation action. He requested his case be considered by a board of officers, he wanted to make a personal appearance before such a board, and wanted representation by counsel before such a board. He elected to submit statements in his own behalf, but none are attached to his separation packet. After consulting with counsel, he waived his right to a board.

On 23 October 1989, the applicant accepted NJP under Article 15, UCMJ for wrongful use of cocaine sometime between 30 August and 5 September 1989 as shown by his testing positive for the drug on a urinalysis test. The applicant did not appeal the Article 15.

On 25 October 1989, the appropriate authority approved the recommendation for separation and directed the applicant receive a general discharge.

On 14 November 1989, the applicant was discharged in pay grade of E-1 under the provisions of Army Regulation 635-200, Chapter 14 for misconduct, commission of a serious offense. He had completed 7 years, 3 months, and 5 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 10 December 1996, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgraded discharge; however, it did change the narrative reason from misconduct, commission of a serious offense to misconduct.

 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 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. The applicant has failed to submit evidence that would satisfy the aforementioned requirement.
2. The applicant received an Article 15 for each of the two times he tested positive for cocaine during urinalysis testing. He did not appeal either Article 15

3. The applicant’s administrative separation was accomplished in compliance with applicable regulations. Considering the reason for his Article 15s and his previous record of dishonored checks and minor disciplinary infractions, the characterization of his discharge as general is appropriate.

4. 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




                                                      Loren G. Harrell
                                                       Director

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