4MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 21 May 2002
         DOCKET NUMBER: AR2002068372

         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. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Ms. Jennifer L. Prater		Chairperson
Ms. Barbara J. Ellis		Member
Mr. Thomas Lanyi		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 has not been in any trouble for drug related offenses and believes that he served his country honorably. He further states that his discharge hinders his education and job opportunities and he is subjected to prejudicial treatment for the events of his past, that occurred because he did not apply himself.

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

He enlisted in New York on 5 January 1978 for a period of 3 years and training as a power generator equipment repairer. He completed his training and was transferred to Fort Campbell, Kentucky.

On 19 April 1979, nonjudicial punishment (NJP) was imposed against him for possession of marijuana. His punishment consisted of a reduction to the pay grade of E-2 (suspended for 90 days), a forfeiture of pay, extra duty and restriction.

On 26 June 1979, NJP was imposed against him for possession of marijuana. His punishment consisted of a forfeiture of pay and extra duty.

On 22 April 1981, while assigned to a combat support hospital, NJP was imposed against him for the wrongful appropriation of a cylinder of nitrous oxide. His punishment consisted of a reduction to the pay grade of E-3, a forfeiture of pay and extra duty. He appealed his punishment and his appeal was denied on 11 May 1981.

On 11 September 1981, NJP was imposed against him for striking another soldier with his fist. His punishment consisted of a forfeiture of pay and extra duty.

On 23 March 1982, he was transferred to Germany and on 8 July 1982, the commander initiated action to bar the applicant from reenlistment. He cited as the basis for his recommendation, the applicant’s disciplinary record, that he was pending NJP for possession of marijuana on 11 June 1982, his negative attitude towards the Army coupled with his written statement indicating his desire to get out of the Army, and his reoccurring disciplinary problems. The applicant submitted a statement in his own behalf, whereas he asserted that the bar to reenlistment was unfair and unjust because he had paid for his past actions and that his performance at Fort Campbell had been good. The appropriate authority approved the bar to reenlistment on 30 August 1982.

On 15 April 1983, drug paraphernalia was found in the applicant’s room. He was referred for a urinalysis on the same day that tested positive for marijuana.
The commander also requested a synopsis of the applicant’s rehabilitation activities in the Army Drug and Alcohol Prevention Control Program (ADAPCP). The clinical director provided that the applicant was enrolled in the ADAPCP after testing positive for marijuana on 21 December 1982. He was enrolled in Track II rehabilitation and participated in five group sessions. He took four urinalyses and tested positive for two of them. The applicant’s potential for rehabilitation was deemed poor.

The applicant’s commander notified him on 3 May 1983, that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200, chapter 9, for drug abuse rehabilitation failure. The applicant declined assistance or consultation with counsel, elected not to submit a statement in his own behalf and declined treatment in a Veterans Administration (VA) Hospital.

The appropriate authority approved the recommendation for discharge on 23 May 1983 and directed that he be furnished a General Discharge Certificate.

Accordingly, he was discharged under honorable conditions on 8 June 1983, under the provisions of Army Regulation 635-200, chapter 9, for drug abuse rehabilitation failure. He had served 5 years, 5 months and 4 days of total active service.

There is no indication in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 9 of that regulation contains the authority and outlines the procedures for discharging individuals because of alcohol and/or drug abuse. A member may be separated because of inability or refusal to participate in, or successfully complete a rehabilitation program if there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical. Characterization of service will be determined solely by the soldier’s military record that includes the soldier’s behavior and performance during the current enlistment. An honorable discharge is a separation with honor and is appropriate when the quality of the soldier’s service generally has met the standards of acceptable conduct and performance of duty. A general discharge is a separation from the Army under honorable conditions. It is issued to soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. There are no automatic provisions, nor have there ever been, to automatically upgrade a discharge made under these provisions.




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 applicant’s administrative separation was accomplished in accordance with applicable regulations with no evidence of any violations of the applicant’s rights. Accordingly, he was given the proper narrative reason for his separation and he has provided no evidence to justify an upgrade of his discharge.

3. The applicant had at least four incidents of misconduct involving drug abuse and the Board finds that such misconduct does not constitute fully honorable service.

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

__jlp____ ____be__ ___tl ____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002068370
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/05/21
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	1983/06/06
DISCHARGE AUTHORITY	AR635-200, ch9
DISCHARGE REASON	Drug rehab failure
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 680	144.6900/a69.00
2.
3.
4.
5.
6.