MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 24 January 2002
         DOCKET NUMBER: AR2001061319


         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. G. E. Vandenberg		Analyst

The following members, a quorum, were present:

Mr. George D. Paxson		Chairperson
Mr. Walter T. Morrison		Member
Mr. Richard T. Dunbar		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: That his discharge be upgraded and he be granted either educational benefits or reimbursed those monies he paid into the program.

APPLICANT STATES: In effect, that he is entitled to the upgrade based on his service in Kuwait, Europe and Georgia. The applicant claims that he was told that his discharge would be changed to an honorable after one year. He states that he had mitigating factors, which impacted his decisions, of family problems, and that he was young and immature. He also states that he is entitled to either receive “G. I. Bill” education benefits or to have the monies he contributed to this fund refunded to him.

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

The applicant entered active duty on 15 August 1990 on a four-year enlistment. He completed Basic Combat Training, Advanced Individual Training and was awarded the Military Occupational Specialty (MOS) of 19K10 (M1 Armor Crewman). The applicant’s early assignments included service in Germany, from 30 December 1990 to 10 June 1991 and from 11 September 1991 through 22 December 1992, and Kuwait, from 11 June 1991 through 10 September 1991. On 15 December 1992 he was promoted to specialist fourth class (E-4). He reenlisted for three years on 20 January 1994.

The applicant’s record contains a memorandum, dated 27 January 1993, indicating that the applicant had a local bar to reenlistment. The record is devoid of any other information on this bar.

The record also contains six general counseling forms for being late for or missing formation during the period 10 October 1993 through 19 August 1994. Several of the counseling statements note that he had been absent or late on several occasions other than those dates for which he was counseled. In concert with the 19 August 1994 counseling, his chain of command recommended that he receive punishment under Article 15 of the Uniform Code of Military Justice (UCMJ). No details on any subsequent actions, based on this recommendation, are of record.

The applicant participated in a random urinalysis screening for drugs on 20 July 1994. His command was notified, 8 August 1994, that the applicant had tested positive for tetrahydrocannabinol (THC), the active ingredient in marijuana. The applicant received nonjudicial punishment (NJP) imposed under Article 15, UCMJ, for the use of illegal drugs on 29 September 1994. His punishment included reduction to private first class (PFC) (E-3) and forfeiture of $552 for two months.

The applicant was reported absent without leave (AWOL) from 0630, 25 October 1994 to 0630, 27 October 1994.
On 20 December 1994, the applicant’s company commander recommended that he be separated under the provisions of Army Regulation 635-200, chapter 14, for misconduct for use of a controlled substance (marijuana), AWOL, indebtedness and the infractions noted in the counseling statements.

The applicant acknowledged receipt of the letter of notification on 20 December 1994 and submitted a waiver of his rights contingent upon receiving a characterization of service of no less than general under honorable conditions. The applicant’s chain of command accepted this provision and forwarded their recommendation to the discharge authority. The discharge authority accepted this recommendation and the applicant was discharged on 25 January 1995 with a characterization of service as under honorable conditions.

There is no documentation that the applicant made his command aware of any family problems or that he sought assistance or counseling, from any source, to resolve them.

The applicant applied to the Army Discharge Review Board for an upgrade of his discharge in March 2001 and that board unanimously voted to deny any change of reason or characterization of the applicant’s discharge.

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. Paragraph 14-12C(2) sets forth the procedures for separation based on illegal drug use. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

Educational benefits under the various veterans’ educational programs are maintained and administered by the Department of Veterans Affairs and as such this Board has no authority to direct disbursement of funds from these programs. Inquiries relating to this issue should be referred to that agency.

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. This Board does not have jurisdiction to act on the issue of entitlement to or refunds for contributions to the post-service educational programs. The authority for disbursement of funds under these programs rests solely with the Department of Veterans Affairs.

2. The applicant's contention that he was young and immature at the time is not sufficiently mitigating to warrant relief. The Board notes that the applicant was 21 years of age, had satisfactorily completed training and had served for over three years before any negative incidents are documented. His satisfactory performance demonstrates his capacity to serve and shows that he was neither too young nor immature.

3. The Board notes the applicant’s service in Germany and Kuwait, however, this service is not so meritorious as to outweigh the offenses that lead to his discharge.

4. 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. The type of discharge directed and the reasons, therefore were appropriate considering all the facts of the case. Furthermore, the Board notes that the applicant specifically bargained for the general discharge he now seeks to upgrade.

5. There are no provisions for automatic review or upgrading of discharges after one year.

6. 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.

7. 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

__GDP__ ___WTM_ ___RTD_ DENY APPLICATION




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

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INDEX

CASE ID	AR2001061319
SUFFIX
RECON
DATE BOARDED	20020124
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.00
2.
3.
4.
5.
6.