MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 21 May 2002
         DOCKET NUMBER: AR2002069319

         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 discharge under other than honorable conditions be upgraded to honorable.

APPLICANT STATES: In effect, that his discharge was unjust because his entire record was not considered. He goes on to state that he appeared before two separation board hearings and during the second hearing, testimony from the first hearing that would have supported his position, was not admitted. However, testimony from his ex-spouse was admitted because she would not make herself available. At the time, he was going through a child custody battle and if the Board looks at his entire record, it will see that his service was honorable and that he was unjustly discharged.

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

He enlisted on 6 June 1977 and remained on active duty through a series of continuous reenlistments. On 14 July 1981, he was assigned to Fort Bragg, North Carolina, for duty as a finance specialist. He was advanced to the pay grade of E-5 on 1 July 1983. On 21 July 1984, he was apprehended for driving while intoxicated (DWI) and received a letter of reprimand.

He departed Fort Bragg on 5 August 1985 and arrived in Germany on 7 September 1985. Meanwhile; officials at Fort Bragg forwarded the results of a urinalysis to the applicant’s gaining command indicating that the applicant had tested positive for marijuana on 15 July 1985.

The commander advised the applicant of his rights and informed him that since he was new to the unit, he (the commander) would request a retest of the specimen. The commander enrolled the applicant in Track I of the Alcohol and Drug Abuse Prevention Control Program (ADAPCP) and submitted a request to have the urine specimen retested. Meanwhile, the chain of command had to counsel the applicant repeatedly about writing bad checks, not paying his debts and being late for work and formations. During one of the counseling sessions, the applicant admitted to the first sergeant, in the presence of a witness, that his friends at Fort Bragg had repeatedly used marijuana in his apartment and offered that as the basis for his positive urinalysis. The first sergeant terminated the session and advised the applicant to seek legal counsel.

The retest of the urinalysis came back positive and on 17 October 1986, the commander initiated action to separate the applicant from the service under the provisions of Army Regulation 635-200, chapter 14, for misconduct – drug abuse. After consulting with counsel, the applicant elected a personal appearance before an administrative separation board and to be represented by counsel.

On 15 December 1986, the commander issued the applicant a letter of reprimand for circumventing procedures to fraudulently initiate a financial allotment while pending discharge procedures, in violation of public law and established procedures, for which he was aware.

The administrative separation board convened on 5 January 1987, with the applicant present and represented by counsel. During the proceedings, the applicant testified to the effect that his roommate (another soldier) smoked as many as five marijuana joints a day and that he did not report him because he (the applicant) was separated from his wife and needed the roommate to help with his rent. His wife (a soldier also) testified that she had seen the applicant smoke marijuana both before and after they were separated. After hearing testimony and reviewing the evidence presented, the board found that the applicant was undesirable for further retention in the military service because of abuse of illegal drugs and recommended that he be discharged under other than honorable conditions.

The appropriate authority (a brigadier general) approved the findings and recommendations of the board on 5 February 1987 and directed that he be discharged under other than honorable conditions.

Accordingly, he was discharged under other than honorable conditions on 13 February 1987, under the provisions of Army Regulation 635-200, chapter 14, for misconduct – drug abuse. He had served 9 years, 8 months and 8 days of total active service.

The applicant applied to the Army Discharge Review Board (ADRB) on 13 April 1987, for an upgrade of his discharge. He contended at that time that he was unjustly discharged based on charges that he had used drugs that were never proven and illegal testimony from his ex-spouse. He contended that the urinalysis was flawed and that the testimony by his spouse at the time was inadmissible under the spouse immunity statute. The ADRB opined that there was no evidence to support the applicant’s contentions and voted unanimously to deny his request on 11 January 1988.

The applicant again applied to the ADRB on 9 May 1988 and was granted a personal appearance before the ADRB traveling panel at San Antonio, Texas on 22 March 1990. He contended at that time that his financial and family problems impaired his ability to serve, that his record of punishments were for minor isolated offenses, and that his command abused its authority by discharging him and by giving him a bad discharge. After hearing testimony from the applicant and his counsel, the ADRB determined that his discharge was proper and equitable and again voted unanimously to deny his request.

Army Regulation 635-200 serves as the authority for enlisted separations. Paragraph 14-12c (2) provides for the separation of enlisted soldiers for misconduct based on the abuse of illegal drugs. It states, in pertinent part, that abuse of illegal drugs is serious misconduct that may warrant separation action based on commission of a serious offense. In the event that there are mitigating factors, a single drug offense may be combined with one or more minor disciplinary infractions or incidents of misconduct and processed for separation. The commander makes the determination to process first-time drug offenders serving in the pay grades of E-1 to E-4 and both the immediate and intermediate commanders must make recommendations for separation or retention as well as characterization of service. Personnel serving in the pay grade of E-5 or above will be processed for separation and the commander does not have discretion in the matter. The separation reason in all separations authorized by this paragraph will be “misconduct – abuse of illegal drugs.” There are not now nor have there ever been any provisions for a subsequent automatic upgrade of a duly constituted discharge.

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 procedural errors which would tend to jeopardize his rights.

2. Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

3. The Board finds that he was properly discharged, his service was properly characterized, and he has failed to show that what the Army did in his case was improper.

4. The Board has noted the applicant’s contentions and finds them to be insufficiently mitigating when compared to the offenses for which he was discharged and his overall record of service. This is especially true given his repeated admissions that he was in the presence of and condoned the use of drugs in his residence, conduct that is not expected or tolerated from soldiers and especially noncommissioned officers.

5. The basic issue in this case is whether or not the urinalysis used as the basis to discharge him was legally sufficient to do so. To date, the applicant has failed to provide evidence to show that the urine sample submitted by him was flawed in any way, was improperly handled or was not the sample submitted by him. Accordingly, in the absence of evidence to show that such was the case, the Board must presume that the urinalysis was legally sufficient.


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

__jlp ____ __be____ __tl ____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002069319
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/05/21
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	1987/02/13
DISCHARGE AUTHORITY	AR635-200, CH14
DISCHARGE REASON	MISCONDUCT/DRUGS
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 626	144.6000/A60.00
2.
3.
4.
5.
6.