MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 14 February 2002
         DOCKET NUMBER: AR2001063294

         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. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Ms. Barbara J. Ellis		Member
Mr. John E. Denning		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 general discharge be upgraded to honorable.

APPLICANT STATES: In effect, that he received a general discharge because he did not receive any discharge at his special court-martial. He contends that his administrative separation was racially motivated and biased due to the source of evidence.

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

The applicant enlisted on 28 February 1996 for a period of 5 years. He trained as a military policeman and attained the rank of specialist/E-4 on 1 November 1997.

On 29 April 1998, nonjudicial punishment was imposed against the applicant for being derelict in the performance of his duties by sleeping in his vehicle. His punishment consisted of a reduction to E-3 (suspended until 27 July 1998), forfeiture of $7 (suspended until 27 July 1998) and extra duty for 11 days.

On 31 August 1999, the applicant was convicted by a special court-martial of using and possessing marijuana. He was sentenced to be reduced to E-1, to forfeit $639 per month for 6 months and to perform hard labor without confinement for 90 days. On 22 December 1999, the convening authority approved only so much of the sentence as provides for forfeiture of $639 per month for 4 months, 90 days hard labor without confinement and reduction to
E-1.

On 6 January 2000, the applicant underwent a separation physical examination and was found qualified for separation with a physical profile of 111111.

On 24 January 2000, the applicant was evaluated by the Community Mental Health Service and diagnosed as cannabis dependent. He was psychiatrically cleared for any administrative action deemed appropriate by his command.

On 2 March 2000, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 14, for misconduct (commission of a serious offense). The company commander recommended that the applicant receive a general discharge and based his recommendation for separation on the applicant’s conviction by court-martial for possession and use of illegal drugs (marijuana).

On 2 March 2000, the applicant declined to sign the statement of understanding which was a document acknowledging that he was being processed for discharge.

On 13 March 2000, after consulting with civil counsel, the applicant again declined to sign the statement of understanding. However, he indicated on this
statement that he opposed the separation, wanted to be retained in the Army and did not wish to waive any of his rights. He also elected to submit a statement on his own behalf which was provided by his civilian counsel. In summary, counsel stated that a separation was not appropriate or warranted. The exact same information was presented at the applicant’s special court-martial which decided that he should not be separated and should be retained.

On 4 April 2000, the battalion commander concurred with the recommendation for separation.

On 18 April 2000, the separation authority approved the recommendation for discharge and directed the issuance of a general discharge.

Accordingly, the applicant was discharged on 24 April 2000 with a general discharge under the provisions of Army Regulation 635-200, chapter 14, for misconduct (commission of a serious offense – abuse of illegal drugs). He had served 4 years, 1 month and 27 days of total active service.

On 14 November 2001, the Army Discharge Review Board denied the applicant’s request for a discharge upgrade to honorable.

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, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the soldier’s overall record. Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. Whenever there is doubt, it is to be resolved in favor of the individual.

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 applicant’s contention that he received a general discharge because he did not receive any discharge at his special court-martial is not supported by the evidence of record. Evidence of record shows that the applicant was convicted by a special court-martial of possession and use of illegal drugs (marijuana); however, the sentence adjudged did not include a punitive discharge. Evidence of record shows that administrative discharge proceedings were initiated following the applicant’s special court-martial for misconduct (commission of a serious offense - abuse of illegal drugs). Evidence of record also shows that the company commander and the battalion commander recommended that the applicant be separated with a general discharge. Records further show that the separation authority considered those recommendations and determined that a general discharge was warranted by the applicant’s overall record.

2. The Board considered the applicant’s contention that his administrative separation was racially motivated and biased due to the source of evidence. However, there is no evidence of record available to the Board, and the applicant has provided no evidence, to support these contentions.

3. 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.

4. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

5. The Board considered the applicant’s record of service and determined that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, he is not entitled to an honorable discharge.

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

JSL____ BJE____ JED_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2001063294
SUFFIX
RECON
DATE BOARDED	20020214
TYPE OF DISCHARGE	(GD)
DATE OF DISCHARGE	20000424
DISCHARGE AUTHORITY	AR 635-200 CHAPTER 14
DISCHARGE REASON	Misconduct (commission of a serious offense-abuse of illegal drugs)
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	110.0200
2.
3.
4.
5.
6.