MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 7 March 2002
         DOCKET NUMBER: AR2001063352

         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. Lee Cates		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor, Jr.		Chairperson
Mr. John P. Infante		Member
Ms. Regan K. Smith		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 the reason for his discharge be changed.

APPLICANT STATES: That before the results of the first test had come in he had already taken the second. He feels that if something had been done before the second test, he would have served his 4-year term. He indicates he turned down legal counsel because the person that sold him the drugs threatened to kill him if he had said anything about him. Further, he contends that the Criminal Investigation Division had planned to bring the seller in as soon as they could and he wanted to hurry and get out [of the Army] as fast as he could.

Further, he asks if he can get his G.I. Bill or get his $1,200 back.

He provides copies of Defense Finance and Accounting Service Military Leave and Earning Statements for September and October 1993, and a copy of the Army Discharge Review Board (ADRB) Case Report and Directive, dated 19 November 1999.

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

During the period 2 November 1992 through 28 July 1993, the applicant served in the Army Reserve Delayed Enlistment Program.

On 29 July 1993, the applicant enlisted in the Army for 4 years and training in military occupational specialty (MOS) 57F (Mortuary Affairs Specialist). He completed his required training and was awarded MOS 57F. He was advanced to pay grade E-3, effective 1 April 1994.

On 2 August 1993, the applicant authenticated DD Form 2366 (Montgomery GI Bill Act of 1984 (MGIB)), which was witnessed by a disinterested party. He authenticated, in pertinent part, that he understood that his basic pay would be reduced by $100 per month for each of the first 12 full months of active duty and that this basic pay reduction could not be refunded, suspended or stopped; that he must complete 36 months of active duty service before he was entitled to $300 per month of benefits for a period of 36 months; and, that he must receive an honorable discharge for service establishing entitlement to the MGIB.

On 24 March 1995, the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice for the wrongful use of cocaine. His punishment included his reduction to pay grade E-1, forfeiture of $395 pay per month for 2 months, extra duty for 45 days and restriction for 45 days.

On 10 May 1995, a physical examination cleared the applicant for separation.

On 12 May 1995, a Report of Mental Status Evaluation cleared the applicant for any administrative action deemed appropriate by command.
On 22 May 1995, he received NJP for the wrongful use of cocaine. His punishment included forfeiture of $395 pay per month for 2 months, extra duty for 45 days and restriction for 45 days.

On 7 June 1995, his commander advised him that he was initiating action to discharge him under the provisions of Army Regulation 635-200, chapter 14, based on his pattern of misconduct. He also advised him of his rights.

On 12 June 1995, he acknowledged his commander’s notification. He waived consideration of and personal appearance before an administrative board, indicated that statements in his own behalf would not be submitted and waived consulting counsel.

On 16 June 1995, the appropriate separation authority approved the discharge and directed reduction to pay grade E-1.

On 22 June 1995, he was discharged, in pay grade E-1, under the above-cited regulation with a discharge under other than honorable conditions. His separation document indicates he had 1 year, 10 months and 24 days of creditable service.

On 19 November 1999, the ADRB found his discharge proper, but not equitable and directed it be upgraded to General, Under Honorable Conditions.

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, conviction 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.

Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 3-7 provides that an honorable discharge is a separation with honor. 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, or is otherwise so meritorious that any other characterization would be inappropriate.

Chapter 30, Title 38 of the US Code established eligibility requirements for participation in the Veterans’ Educational Assistance Act of 1984 (New GI Bill). It provided that individuals who entered an initial period of active duty on or after 1 July 1985 would be automatically enrolled in the program unless they opted to disenroll within a specific time frame established by the individual services. Once enrolled in the New GI Bill the individual’s basic pay was reduced $100.00 per month for each of the first full 12 months of active duty and could not be refunded, suspended or stopped. An honorable discharge is required for receipt of entitlements, which amounted to $300.00 per month for 36 months, for individuals who completed at least 3 years of active duty.

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 administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors, which would tend to jeopardize his right.

2. His discharge was upgraded by the ADRB; however, the reason for the discharge remained unchanged.

3. The reasons for his discharge were appropriate considering all the facts of the case.

4. The evidence of record clearly shows the applicant was aware of and agreed to the conditions of the GI Bill, which required an honorable discharge.

5. 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 the preceding requirement.

6. 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

_jpi___ __rks___ _rvo____ DENY APPLICATION

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

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INDEX

CASE ID	AR2001063352
SUFFIX
RECON
DATE BOARDED	20020307
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.00
2.
3.
4.
5.
6.