MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:


         BOARD DATE: 13 March 2001
         DOCKET NUMBER: AR2001052439


         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. Rosa M. Chandler		Analyst

The following members, a quorum, were present:

Ms. June Hajjar		Chairperson
Mr. Donald P. Hupman Jr.		Member
Mr. John T. Meixell		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)

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APPLICANT REQUESTS: In effect that he received a General Discharge (GD), however, he believes that he should have received an honorable discharge (HD).

APPLICANT STATES: In effect, that he was a helicopter mechanic and he received good performance ratings. He tested positive for marijuana when his unit tested everyone that worked on the airfield. He was offered nonjudicial punishment (NJP) or a court-martial for the offense. He requested another urinalysis test and he was refused. His commander had insufficient evidence to court-martial him, therefore, he was told that he was going to receive a bad reenlistment code and he would be assigned to duties as a truck driver. Noncommissioned officers (NCOs) were assigned to other units and given a second chance when their urinalysis tests were positive and other soldiers in his unit received NJPs for positive urinalysis tests. He was never reassigned and given a second chance. He was discharged with a GD. He believes that this shows disparate treatment. He was railroaded out of the military without due process. He received an NJP for missing movement after his NCO told him that he did not have to go.

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

On 29 November 1982, he enlisted in the Delayed Entry Program (DEP), in the US Army Reserve for 6 years. On 8 March 1983, he was discharged from the DEP and enlisted in the Regular Army for 3 years and training in military occupational specialty (MOS) 68H (Aircraft Pneudralics Repairer).

On 6 March 1984, a command directed urinalysis showed that the applicant tested positive for “marijuana (THC).”

On 16 April 1984, he was relieved from his assigned duties as an Aircraft Hydraulic Systems Repairer for cause due to personal misconduct and gross professional inefficiency. He was reassigned to duties in MOS 64C (Motor Transport Operator).

On 19 April 1984, he was barred from reenlistment. His positive urinalysis and his relief from assigned duties for cause were cited as the bases for the action. He did not appeal the barring action.

Between August and December 1984, he received counseling for apathy, for having a defective attitude, for his duty performance and conduct, for receiving a positive urinalysis test, for being relieved for cause from his work section, and for failure to report to work at the time prescribed on 27 November 1984.

On 4 December 1984, the applicant was counseled for being absent without leave (AWOL) from his unit from 29 November-4 December 1984 in an attempt to avoid a field exercise.

On 10 December 1984, he accepted NJP under the provisions of Article 15, Uniform Code of Military Justice for the above period of AWOL. His punishment included reduction from pay grade E-3 to pay grade E-1 and 30 days extra duty.

On 20 December 1984, the applicant's commander officially notified him that he was being recommended for discharge under the provisions of chapter 13, Army Regulation 635-200, for unsatisfactory performance. The commander cited the applicant's counseling statements, his total apathy, his defective attitude, his NJP and his unsatisfactory work performance as the bases for the discharge action.

On 21 December 1984, the applicant acknowledged notification of the commander’s intent to separate him. He consulted with legal counsel concerning the basis for the contemplated separation action and the rights available to him. He was not entitled to consideration of his case by a board of officers. He requested in a statement that he submitted in his own behalf that he be separated under the provisions of chapter 16, Army Regulation 635-200, because he could not overcome his bar to reenlistment. He stated that he desired to remain on active duty and that he felt that he could excel in the military if he were assigned to another unit.

On the same day, the commander recommended that a rehabilitative transfer be waived. He stated that the applicant demonstrated through his behavior and his attitude that he did not posses the potential to be a quality soldier. Additionally, he stated that the applicant had been assigned various duty assignments under the direction of different superiors and that his performance had been unsatisfactory. He felt that rehabilitative efforts would be useless.

On 27 December 1984, the applicant was found to be both mentally and physically qualified for separation under the provisions of chapter 13, Army Regulation 635-200 for unsatisfactory performance.

On an unknown date, the Staff Judge Advocate's office at his installation determined that the applicant’s discharge under the provisions of chapter 13, for unsatisfactory performance was legally sufficient.

On 14 January 1985, the appropriate authority approved the separation recommendation and directed the issuance of a GD.

On 24 January 1985, the applicant was discharged under the provisions of chapter 13, Army Regulation 635-200, for unsatisfactory performance with a GD. He had completed 1 year, 10 months and 12 days of creditable active military service. He had 4 days lost time due to being AWOL. He also had 3 months and 9 days of prior inactive service.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier. Army policy states that a GD, under honorable conditions is normally considered appropriate, but an HD may be granted in meritorious cases.

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 or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

2. The discharge proceedings were conducted in accordance with law and regulations applicable at the time. Both the characterization of service and the narrative reason for separation are commensurate with the applicant’s overall record of military service.

3. It was his command's prerogative to determine whether the applicant should be reassigned to another unit as a rehabilitative transfer or to retain him in his old unit for further duty. His commander stated at the time of discharge that a rehabilitative transfer would not be fruitful. Further, the available records do not show disparate treatment of the applicant and he has failed to provide evidence to the contrary.

4. In view of the foregoing, there is no basis for granting the applicant's request.

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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

__jh ____ __dph __ ___jtm ___ DENY APPLICATION



                                            

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






                                                     

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INDEX

CASE ID	AR2001052439
SUFFIX
RECON
DATE BOARDED	20000313
TYPE OF DISCHARGE	(GD)
DATE OF DISCHARGE
DISCHARGE AUTHORITY	AR 635-200, Chapter 13
DISCHARGE REASON	A40.00
BOARD DECISION	Deny
REVIEW AUTHORITY
ISSUES 1.	144.4000
2.
3.
4.
5.
6.