MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 10 December 2002
         DOCKET NUMBER: AR2002075003

         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. Celia L. Adolphi		Chairperson
Mr. Ted S. Kanamine		Member
Mr. Conrad V. Meyer		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: In effect, constructive service for an additional 1 year and 21 days of active duty, back pay and allowances for a like period, reimbursement for medical expenses incurred since his discharge, and full restitution of his college fund entitlements.

APPLICANT STATES: In effect, that he was wrongfully and intentionally discharged from the Army prematurely, without the benefit of rehabilitation. He further states that had he been afforded rehabilitation, he may have made the Army his career or at least have completed his contract for the 1 year and 21 days remaining on his contract. He goes on to state that as a result of his being unjustly discharged, he has been denied benefits that he otherwise would have been entitled to receive, had the Army followed its own regulations and procedures. He also states that the Army Discharge Review Board (ADRB) recognized that no rehabilitation attempts had been made and upgraded his discharge to fully honorable. He continues by stating that had he not been improperly discharged, he would have been entitled to medical benefits at the Department of Veterans Affairs (VA) that he has had to pay for and desires reimbursement for, and he would have received the benefits of his college fund.

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

He enlisted in Beckley, West Virginia, with a waiver (experimental use of marijuana) on 26 February 1986, for a period of 3 years, training as a single channel radio operator, assignment to Europe and enrollment in the Army College Fund (ACF). At the time of his enlistment, he acknowledged that he understood he would forfeit his entitlement to benefits of the ACF if he failed to complete his initial enlistment.

He successfully completed his training, was advanced to the pay grade of E-2 on 26 August 1986, and was transferred to Germany on 10 September 1986, for duty as a single channel radio operator.

On 17 October 1986, nonjudicial punishment (NJP) was imposed against him for failure to obey a lawful order and being absent from his place of duty. His punishment consisted of extra duty and restriction.

He was advanced to the pay grade of E-3 on 1 December 1986.

On 20 February 1987, NJP was imposed against him for two specifications of failure to go to his place of duty (guard mount and guard duty) and one specification of sleeping on guard duty. His punishment consisted of a forfeiture of pay (suspended for 90 days), extra duty and restriction.

On 13 March 1987, NJP was imposed against him for the wrongful use of marijuana. His punishment consisted of a reduction to the pay grade of E-2, a forfeiture of pay (suspended for 90 days), extra duty and restriction for 30 days (suspended for 90 days). He also received a letter of counseling from the battalion commander informing him that if further incidents of misconduct occurred again, he would be recommended for discharge.

He was again advanced to the pay grade of E-3 on 1 June 1987.

On 2 December 1987, NJP was again imposed against him for the wrongful use of marijuana. His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of pay, extra duty and restriction.

On 14 December 1987, the applicant’s commander notified him that she was considering disqualifying him for award of the Good Conduct Medal (GCMDL) based on his repeated use of marijuana. The applicant elected not to submit a statement in his own behalf and the commander disqualified him for award of the GCMDL from the date of his enlistment to 31 December 1987.

On 14 December 1987, the commander also notified the applicant that she was initiating a recommendation to separate him from the service under the provisions of Army Regulation 635-200, chapter 14, paragraph 12c, for misconduct. She cited the applicant’s disciplinary record as the basis for her recommendation.

After consulting with counsel, the applicant elected not to submit a statement in his own behalf.

The commander initiated the recommendation for separation and cited as the basis for her recommendation the applicant’s disciplinary record and his failure to respond to counseling and rehabilitation attempts, as evidenced by his enrollment in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) and his reassignment to another platoon after NJP was imposed against him on 13 March 1987.

The battalion commander recommended approval of the separation action under Army Regulation 635-200, chapter 14, and recommended that he be furnished a General Discharge Certificate.

For reasons unexplained in the available records, the brigade commander approved the recommendation for discharge on 14 January 1988, but did so under Army Regulation 635-200, chapter 9, for drug abuse rehabilitation failure. He directed that the applicant be furnished a General Discharge Certificate.

On 4 February 1988, the applicant was discharged under honorable conditions under the provisions of Army Regulation 635-200, chapter 9, for drug abuse rehabilitation failure. He had served 1 year, 11 months and 9 days of total active service.

On 23 January 2001, the applicant applied to the ADRB for an upgrade of his discharge. He contended that his discharge was improper because he was never afforded any rehabilitation, just punishment.

The ADRB found no indication that he was a ADAPCP failure and voted to grant relief in the form of an upgrade of his discharge to fully honorable, by reason of Secretarial Authority.

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; however, for second-time drug offenders, all soldiers, regardless of grade, must be processed for separation.

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.

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 contention that he was unjustly discharged and was denied rehabilitation appears to be without merit. By virtue of his being enrolled in the ADAPCP and then having a second offense, the commander had no choice but to process him for separation prior to his expiration of term of service.
2. The applicant was eligible for separation under both chapters 9 and 14 of Army Regulation 635-200. However, he was advised of his rights and informed that he would be discharged under the provisions of chapter 14, for misconduct. Therefore, he should have been discharged under that provision. However, for reasons not explained in the available evidence of record, the approving commander approved the discharge under chapter 9, as a drug rehabilitation failure. In any event, the outcome would have been the same.

3. While the Board cannot ascertain why the ADRB opined that he was not a ADAPCP failure, the actions by that board have worked in favor of the applicant and this Board will not reverse the actions of that board.

4. However, the Board finds that it was proper to discharge the applicant when he was discharged, albeit under the proper authority, and that he should not be entitled to benefits or receive credit for service that he has not earned or served.

5. Accordingly, the Board finds no basis to grant him more relief than has already been generously granted by the ADRB.

6. The Board has no jurisdiction over the programs and benefits administered by the Department of Veterans Affairs. Therefore, there is no basis to address those issues.

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

___tsk___ __cvm __ ___cla___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002075003
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/12/10
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 1018	103.0100/ED BENEFITS
2. 303	129.0100/SVC CREDIT
3. 283	128.0000/PAY & ALLOW
4.
5.
6.