MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 11 July 2002
         DOCKET NUMBER: AR2002071492

         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:

Mr. Ted S. Kanamine		Chairperson
Mr. John T. Meixell		Member
Mr. Harry B. Oberg		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 was unjustly punished for offenses that he did not commit and was discharged under protest. He goes on to state that he initially served in the Rhode Island Army National Guard (RIARNG) as a mechanic and eventually enlisted in the Regular Army to be an airborne infantryman. He continues by stating that he had a good record and was promoted to the pay grade of E-4 before he had two years of active duty. However, his trouble began when his commander wanted him to be a mechanic in the motor pool because the unit was short-handed and an inspector general inspection was coming up. However, he was scheduled to take leave with his brother and he informed the commander that his brother had scheduled his leave and was coming from Arizona. On the day his leave was scheduled, the commander performed a health and welfare inspection. As a result, he was arrested for possession of marijuana that he never saw or had any knowledge of. He received nonjudicial punishment (NJP) that resulted in a loss of rank, extra duty and a transfer to the motor pool. He goes on to state that NJP was imposed against him for missing his extra duty and again for marijuana; however, he was not guilty of those offenses as well. After consulting with legal counsel, he decided that it would be better under the circumstances to accept the discharge and appeal it at a later date.

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

He initially enlisted in the RIARNG on 21 June 1978 and served as a power generator and wheel vehicle mechanic until he was honorably discharged on 4 February 1980.

On 5 February 1980, he enlisted in the Regular Army for a period of 3 years and training under the Airborne Infantry enlistment option. He successfully completed his training and was transferred to Fort Lewis, Washington, for duty as a light weapons infantryman. He was advanced to the pay grade of E-4 on 1 June 1981.

On 6 July 1981, NJP was imposed against him by the battalion commander for the wrongful possession of marijuana. His punishment consisted of a reduction to the pay grade of E-1 (suspended for 60 days), a forfeiture of pay, extra duty and restriction. He did not appeal the punishment.

On 19 August 1981, NJP was imposed against him by the battalion commander for failure to go to extra duty. His punishment consisted of a forfeiture of pay (suspended for 90 days), extra duty and restriction. The punishment on his previous NJP was also vacated. The applicant appealed the punishment and the brigade commander denied the appeal on 1 October 1981.

On 21 November 1981, NJP was again imposed against him by the battalion commander for the wrongful possession of marijuana. His punishment consisted of a forfeiture of pay, extra duty and restriction. He did not appeal the punishment.

On 6 January 1982, the applicant’s commander notified him that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200, chapter 5 and the Expeditious Discharge Program (EDP), for failure to maintain acceptable standards for retention. He cited as the basis for his recommendation, the applicant’s disciplinary record, demonstrated lack of motivation and self-discipline, poor attitude, and lack of promotion potential.

After consulting with counsel, the applicant indicated that he accepted the proposed discharge (general) and acknowledged that he understood that if he declined to accept the discharge voluntarily, he could be subject to discharge under other provisions of the law or regulation. He also indicated that he did not want to submit matters in his own behalf

The appropriate authority approved the recommendation for discharge on 15 January 1982 and directed that he be furnished a General Discharge Certificate.

Accordingly, he was discharged under honorable conditions on 22 January 1982, under the provisions of Army Regulation 635-200, paragraph 5-31h(2) and the EDP, for failure to maintain acceptable standards for retention. He had served 1 year, 11 months and 18 days of active service during his current enlistment.

In January 1983, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge. He cited essentially the same reasons to that board that he is citing to this Board. The ADRB granted him a personal appearance before an ADRB Traveling Panel in Tampa, Florida on 14 June 1983 and on 27 June 1983, after reviewing the evidence and testimony presented, the ADRB unanimously denied his application.

The Department of the Army began testing the EDP in October 1973. In a message dated 8 November 1974 the Deputy Chief of Staff for Personnel announced the expansion of the EDP. The program provided for the separation of soldiers whose acceptability, performance of duty and/or potential for continued effective service fell below the standards required for retention in the Army. Soldiers could be separated under this program when subjective evaluation by their commanders identifies them as lacking qualities for continued military service because of attitude, motivation, self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential. Soldiers had to consent to separation under this program in order for commanders to separate them under the EDP. Otherwise, a commander was required to separate soldiers under other provisions of the regulation, which in most cases resulted in an other than honorable 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. 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 compliance with applicable regulations with no violations or procedural errors which would tend to jeopardize his rights. Accordingly, the type of discharge directed and the reasons therefor were appropriate considering all of the available facts of the case.

3. The applicant’s contentions have been noted by the Board; however, they are not supported by either the evidence submitted with his application or the evidence of record. He was properly notified of the commander’s intent to recommend separation and was required to consent to the separation before the recommendation could be processed further. The applicant consented to the separation under the EDP and elected not to submit matters in his own behalf. Accordingly, the Board finds that his service was not fully honorable and lacking evidence to show otherwise, finds that there is no basis to upgrade his discharge to fully honorable.

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

___jm___ __tsk____ __hbo___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002071492
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/07/11
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	1982/01/22
DISCHARGE AUTHORITY	AR635-200/CH5 EDP
DISCHARGE REASON	FAIL TO MAINTAIN STANDARDS
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 730	144.7000/A78.00
2.
3.
4.
5.
6.