MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 19 September 2002
         DOCKET NUMBER: AR2002072521

         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. JoAnn H. Langston		Chairperson
Ms. Melinda M. Darby		Member
Mr. Ronald E. Blakely		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.

APPLICANT STATES: In effect, that he genuinely regrets and accepts responsibility for his actions at the time and understands that he cannot undo the past. However, since his discharge, he has endeavored to become a contributing member of society and a responsible citizen. He continues by stating that he is now the proud father of four, that he volunteers for community recreational sports programs, that he is in good health, a law abiding, socially responsible and a productive citizen who has striven to improve himself in all areas to include his work skills. He further states that the Army gave him a lot and he desires to return as much as he received by enlisting in the Reserve Components. In support of his application, he submits three letters from employers, six diplomas from civilian institutions that relate to his job skills and education, a copy of his police record indicating that he has no record and birth certificates for his children.

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

He enlisted in the Regular Army in Denver, Colorado, on 28 May 1974, for a period of 2 years. He successfully completed his training as an engineer equipment repairman and remained on active duty through a series of continuous reenlistments. He was promoted to the pay grade of E-5 on 17 July 1977.

On 16 February 1982, nonjudicial punishment (NJP) was imposed against him for striking his wife with his closed fists and for failure to go to his place of duty. His punishment consisted of a reduction to the pay grade of E-4 (suspended until 18 August 1982), a forfeiture of pay and extra duty.

On 29 June 1984, the applicant’s request for reclassification to military occupational specialty (MOS) 16S (Man Portable Air Defense System Crewmember) was approved by the Department of the Army. He successfully completed his training at Fort Bliss, Texas, and was transferred to Fort Stewart, Georgia.

On 5 July 1988, NJP was imposed against the applicant by his battalion commander for the wrongful use of cocaine. His punishment consisted of a reduction to the pay grade of E-4, a forfeiture of pay, extra duty and restriction.

On 13 July 1988, the applicant’s commander initiated a recommendation for separation from the service under the provisions of Army Regulation 635-200, chapter 14, for commission of a serious offense based on misconduct – abuse of illegal drugs.

After consulting with counsel, the applicant submitted a request for a conditional waiver in which he agreed to accept a general discharge in return for waiving his right to appear before an administrative separation board.

The appropriate authority accepted the applicant’s request for a conditional waiver and approved the recommendation for separation on 20 July 1988. He directed that the applicant be furnished with a General Discharge Certificate.

Accordingly, he was discharged under honorable conditions on 18 August 1988, under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct – abuse of illegal drugs. He had served 12 years, 4 months and 18 days of total active service.

On 23 October 1990, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge. In support of his application he submitted four letters of recommendation, diplomas indicating that he had an associate degree and doctor of motors certificate. He contended that his service record warranted an upgrade because it was the first such occurrence in his career and that he desired the upgrade to take advantage of educational benefits. The ADRB opined that the applicant’s misconduct as a noncommissioned officer compromised the special trust and confidence placed in him and did not warrant a fully honorable discharge. The ADRB voted unanimously to deny his request.

A review of the applicant’s Official Military Personnel File (OMPF) indicates that he had excellent to average evaluations and that he received an Army Commendation Medal, three Army Achievement Medals, three Good Conduct Medals, a Driver and Mechanic Badge, a Noncommissioned Officer Professional Development Ribbon with Numeral (2), a Overseas Service Ribbon with Numeral (1), an Army Service Ribbon, and a National Defense Service Medal.

The third party statements submitted by the applicant with his applications serve to applaud the applicant’s character and work ethic.

The birth certificates submitted by the applicant indicate that the applicant fathered four children by two different women. He had one in Georgia in 1987, one in Colorado in 1989, one in Georgia in 1996 and one in Georgia in 2001.








Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service. Individuals in pay grades E-5 and above must be processed for separation upon discovery of a drug offense. Those in pay grades below E-5 may also be processed after a first time drug offense and must be processed for separation after a second offense. While an honorable or general discharge may be issued, a discharge under other than honorable conditions is normally considered appropriate.

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 accordance with applicable regulations with no procedural errors that would tend to jeopardize his rights.

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

3. The applicant’s contentions and supporting documents have been noted by the Board and the Board commends him for his post-service achievements. However, the Board finds that given the circumstances in his case and the seriousness of his offense, his service does not warrant a fully honorable discharge.

4. The Board also notes that he elected to submit a request for a conditional waiver in which he agreed to accept a general discharge rather than presenting his case to an administrative separation board and running the risk of being recommended for either a discharge under other than honorable conditions, an honorable discharge or being retained on active duty by the administrative separation board. While he may now believe that his record of service warrants a fully honorable discharge, he should not be allowed to change his decision at this late date. He committed a serious offense and his discharge appropriately characterizes his service.

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 this 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

___md___ __jhl____ ___reb___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002072521
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/09/19
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	1988/08/18
DISCHARGE AUTHORITY	AR635-200, CH14
DISCHARGE REASON	MISCONDUCT
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 626	144.6000/A60.00
2.
3.
4.
5.
6.