MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 3 December 2002
         DOCKET NUMBER: AR2002074698

         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
Ms. Antoinette Farley		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. James E. Anderholm		Member
Ms. Charmane Collins		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 (GD) be upgraded to an honorable discharge.

APPLICANT STATES: In effect, that he supported the military for 10 years with a good record and now believes his GD should be upgraded. In support of his claim he submits a copy of his DD Form 214 (Report of Transfer or Discharge) dated 1 May 1986.

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

That prior to his enlistment under review he had several periods of honorable service starting with his entry into the California Army National Guard (CAARNG) from 14 January 1975 to 23 August 1976; the Regular Army (RA) from 24 August 1976 to 30 July 1979; returning to the CAARNG from 31 July 1979 to 8 June
1981 and the Delayed Entry Program from 9 June 1981 to 20 July 1981.

On 21 July 1981, he reenlisted in the RA for 3 years, in pay grade E-5 as an Indirect Fire Infantryman and was assigned to duty at Fort Carson, Colorado.

On 15 December 1982, he was transferred overseas to Germany for duty.

On 22 January 1985, the applicant returned from overseas to Fort Ord, California for duty.

On 11 October 1985, he received non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for use of a controlled substance,
to wit: Marijuana, as determined by a positive THC result from a urinalysis on
29 August 1985. His punishment included extra duty and restriction for 45 days; forfeiture of $250.00 pay per month for two months and reduction to E-4, suspended for 90 days.

On 30 October 1985, a bar to reenlistment was initiated against him based on testing positive for a urinalysis.

On 21 November 1985, the applicant received another NJP, for negligence, by contributing to the loss of two (2) .45 caliber automatic pistols on 18 November 1985. His punishment included reduction to pay grade E-3; restriction and extra duty for 45 days and forfeiture of $424.00 pay per month for 2 months, suspended for 90 days.

On 25 November 1985, a record supplementary action under Article 15,
UCMJ, vacated the suspension of punishment of reduction to E-3 for 90 days, imposed on the applicant on 11 October 1985. The vacation is based on the applicant’s dereliction of duty, due to his negligence by contributing to the loss of two (2) .45 caliber automatic pistols.
On 16 December 1985, the applicant’s bar to reenlistment was approved. The bases for the bar was his record of Article 15s and the applicant’s urinalysis showing a positive response for the use of marijuana.

On 7 February 1986, a mental and physical evaluation cleared the applicant for separation.

On 15 April 1986, the applicant’s commander initiated action to separate him under the provisions of chapter 14, Army Regulation (AR) 635-200, for misconduct use of illegal drugs and the loss of Government property. The applicant was then advised by legal counsel of the basis for the contemplated action and its effects and the rights available to him. He acknowledged the recommendation and declined to submit a statement in his own behalf.

On 17 April 1986, the applicant’s intermediate commander concurred with the recommendation that he be separated under the provisions of paragraph 14-12c,
AR 635-200, for commission of a serious offense and also recommended that the rehabilitative transfer required in paragraph 1-18, AR 635-200 be waived.

On 24 April 1986, the separation authority waived rehabilitation efforts for the applicant and approved the recommendation for issuance of a General Discharge Certificate, under the provisions of AR 635-200, paragraph 14-12c for misconduct---drug abuse.

On 1 May 1986, the applicant was separated with a GD, under honorable conditions, for misconduct- -drug abuse. He had 4 years, 9 months and 11 days of creditable service under his current enlistment, with 3 years, 3 months and
5 days of total prior active service and 1 year, 11 months and 24 days of total prior inactive service, totaling 10 years, 9 months and 17 days of combine active and inactive service.

AR 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 included minor disciplinary infarctions, a pattern of misconduct, commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absences without leave. Under chapter 14, paragraph 14-12c covers discharges caused by commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Uniform Code of Military Justice, AR 635-200. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. Army policy states that a discharge under other than honorable conditions is normally considered appropriate, but a GD under honorable conditions or an honorable discharge may be granted in certain cases.

AR 635-200 is the current regulation governing the separation of enlisted personnel. In pertinent part, it states that an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the soldier’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 clearly inappropriate. A general discharge is a separation for the Army under honorable conditions. It is issued to a soldier whose military record is satisfactory, but not sufficiently meritorious to warrant an honorable discharge.

There are no records to show that the applicant applied to the Army Discharge Review Board for review of his discharge case within its statute of limitations.

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 indication of any procedural errors that would jeopardize his rights.

3. The type of discharge directed and the reason therefore were appropriate considering all the facts of the case.

4. The Board notes that the applicant had two NJPs. The applicant’s abuse of illegal drugs and his marginal duty performance clearly supported the separation action at that time in his career.

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5. 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

___FNE _ ___JEA _ ___CC __ DENY APPLICATION

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

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INDEX

CASE ID	AR2002074698
SUFFIX
RECON
DATE BOARDED	2002.12.03
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	1986.05.01
DISCHARGE AUTHORITY	AR .635-200 CH14
DISCHARGE REASON	MISCONDUCT—DRUG ABUSE
BOARD DECISION	DENY
REVIEW AUTHORITY	DIRECTOR
ISSUES 1.	A144.0045
2.	A67.70
3.	A
4.	A
5.	A
6.