PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 22 May 2003
         DOCKET NUMBER: AR2002080301


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Richard P. Nelson.		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor		Chairperson
Mr. Stanley Kelley		Member
Ms. Gail J. Wire		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests upgrade of his discharge under other than honorable conditions to a general discharge, under honorable conditions. The applicant also requests reinstatement to pay grade of E-6.

3. The applicant states that the discharge he received was unduly harsh, given the nature of the infraction. He further states that he was not in a duty status when the infraction was committed and that his prior record of exemplary service should have been considered.

4. The applicant’s military records show that he enlisted in the Army on 14 September 1973 for a period of 3 years and trained in Military Occupational Specialty (MOS) 31N20 (Tactical Circuit Controller). He re-enlisted on 23 October 1975 and trained in MOS 55D20 (Explosive Ordnance Disposal Specialist), the field he remained in until his separation from the Army under the provisions of Chapter 14, Army Regulation 635-200 (Separation for Misconduct). The applicant was discharged under other than honorable conditions at Fort Sill, Oklahoma, on 21 June 1985.

5. Evidence of record shows that the applicant’s commander was notified on 28 December 1984 that applicant had tested positive for marijuana. As a result, the applicant received counseling statements from his immediate supervisor and his commanding officer. The applicant was permanently disqualified and removed from the Personnel Reliability Program (PRP), under the provisions of Army Regulation 50-5 (Nuclear Surety) and was recommended for separation under the provisions of Chapter 14 (Misconduct), Army Regulation 635-200 (Personnel Separations Enlisted Personnel).

6. Discharge proceedings were initiated by the applicant’s commanding officer on 20 February 1985. The applicant was appropriately notified of his rights governed by Section III, Chapter 2, AR 635-200. The applicant acknowledged the notification of intent to separate him. He requested consideration by a board of officers and personal appearance before that board. The applicant requested consulting counsel and representation by counsel during the board proceedings.

7. The applicant acknowledged that he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued and that issuance of a discharge under other than honorable conditions would result in loss of many or all benefits as a veteran under both Federal and State laws.

8. A Board of Officers convened on 22 April 1985 at Fort Sill, Oklahoma, to determine whether the applicant should be separated for misconduct and if so, under what conditions. Persons present included the Board President, in the grade of major, two members in the grade of captain, a recorder, counsel for the respondent, the respondent and a reporter. The board convened at 0830 hours.
9. The board considered 13 government exhibits and heard testimony from the applicant’s first sergeant and commanding officer. The respondent presented no exhibits and no witnesses were called on his behalf.

10. During testimony, the applicant’s commander indicated that the applicant admitted to marijuana use and that he (the applicant) did not consider it wrong. The applicant told his commander that he felt the Army was wrong in its view on marijuana use. The applicant was not apologetic about his use of marijuana and inferred to his commander that he would continue using it.

11. The board adjourned at 1107 hours, 22 April 1985. It found that the applicant was undesirable for further military service because of illegal use of drugs under the provisions of Chapter 14, AR 635-200 and recommended that the applicant be discharged from the service because of illegal use of drugs with issuance of an Other Than Honorable Discharge Conditions Discharge Certificate. In addition, the board did not recommend suspension of the execution of the discharge.

12. The convening authority approved the findings of the Board on 12 June 1985. The appropriate separation authority then approved the applicant’s separation. The applicant was separated from the Army on 21 June 1985, barred from entering the Fort Sill military reservation, and administratively reduced to pay grade E-1.

13. A review of the applicant’s service records reveals that, prior to this incident, he had experienced an exceptional career in the Army. He was recommended for award of the Soldier’s Medal (downgraded to an Army Commendation Medal) for bravery during a rescue operation of three civilian personnel who were trapped in an area contaminated by several hundred potentially armed and dangerous M-42 bomblets. The applicant received two other awards of the Army Commendation Medal for meritorious service and three awards of the Good Conduct Medal.

14. For nearly ten years, the applicant received outstanding evaluations from his chain of command. The majority reflected the highest possible numerical ratings and most recommended immediate promotion ahead of his peers. A review of the applicant’s Enlisted Evaluation Reports covering the period March 1974 through August 1984 revealed that the applicant was evaluated 14 times by his chain of command. The average numerical score of these evaluations was 124.3 out of a possible 125. Also, of the 14 evaluations, 1 recommended promotion with his peers, 1 recommended promotion ahead of his peers, and 12 recommended immediate promotion.

15. During board testimony, the applicant’s commander made numerous comments regarding the applicant’s contributions to the Army, as well as his potential. The following comments are taken from the commander’s board testimony:

         “If is wasn’t for PRP and regulations, I would have preferred to do nothing.”
         “Applicant’s ex-wife was bad influence on him.”
         “Prior to ex-wife’s arrival at Fort Sill, I had no problems with applicant.”
         “Applicant knew his stuff.”
         “In Germany, applicant responded to many terrorist threats.”
         “More experience than average E-6.”
         “Had a lot to offer the Army.”
         “If I could keep him, I would.”
         “Not sure about discharge, he’s done his job really well.”
         “If I could keep him, I would.”

16. During the board testimony, the applicant’s commander commented on his disappointment with the Fort Sill Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) Center. The commander made the following comments during the board proceedings:

         “It is my understanding that when applicant was sent over to CCC for counseling, they didn’t want to mess with him, because he was going to be booted out of the Army.”
         “I’ve since found out that they have given me some very bad advice.”
         ”They directed me to break a regulation.”
         “I’ve had some very bad advice from ADAPCP saying ‘he’s gone.’”
         “It was a mistake on their part to say NFA, no further action.”
         “Had he (applicant) been able to go through the program and successfully completed it, he could have gotten a more favorable recommendation.”
        
17. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty. Chapter 14, in effect at the time, dealt with separation for various types of misconduct, which include drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service (ETS). 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 drug offense and must be processed for separation after a second offense. The issuance of a discharge under other than honorable conditions is normally considered appropriate.

18. Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. Whenever there is doubt, it is to be resolved in favor of the individual.

19. Army Regulation 635-200, paragraph 3-7, provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the soldier’s separation specifically allows such characterization.

CONCLUSIONS:

1. Evidence of record shows that the applicant tested positive for use of marijuana during a unit urinalysis test.

2. As a result of the positive urinalysis test, the applicant was removed from the PRP and recommended for separation under the provisions of Chapter 14, AR 635-200.

3. The applicant was duly notified of the commander’s intent to initiate separation action and was fully aware of the characterization of service he could receive as a result of the board’s recommendation. He consulted with counsel and exercised his right to have his case heard by an administrative discharge review board.

4. An administrative discharge review board was convened to consider the commander’s recommendation that the applicant be separated from the service for illegal drug use. The proceedings were conducted in accordance with law and regulations applicable at that time. The board recommended separation under other than honorable conditions and the recommendation was approved by the convening authority.

5. The discharge approval authority considered the recommendation of the administrative review board and determined the applicant should be separated with an under other honorable discharge certificate.

6. The Board noted the applicant admitted to the use of illegal drugs to his commander. The Board also noted the negative influence of the applicant’s ex-wife and her contribution to a distorted view of illegal drug use on the part of the applicant.

7. The Board also noted the applicant’s completion of over eleven years of honorable service, the numerous outstanding efficiency reports received by the applicant and the decorations awarded the applicant for heroic actions and meritorious service.

8. The Board noted that the evaluation of the applicant by the Fort Sill ADAPCP might have been flawed or ineffectual or prejudicial to the applicant. The Board further noted that the advice given to the applicant’s commander was vague, at best, and indications are that the ADAPCP did not give the commander all options available to the applicant.

9. Based on all of the foregoing, the Board determined that the characterization of the applicant’s service was too harsh. However, the Board also determined that the applicant’s indiscipline did not warrant granting relief in the form of an honorable discharge.

10. The Board concluded that applicant’s service met the standards for a general discharge under honorable conditions.

11. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1. That the Discharge Certificate now held by the applicant be declared null and void.

2. That all of the Department of the Army records related to this case be corrected to show that the individual concerned was separated from the service with a General Discharge Certificate, Under Honorable Conditions on 21 June 1985 in pay grade E-6.

BOARD VOTE:

___SK__ ___GJW__ __RVO__ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ______________________
                  CHAIRPERSON

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INDEX

CASE ID	AR2002080301
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030522
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	19850621
DISCHARGE AUTHORITY	AR635-200, PARA 14-12c
DISCHARGE REASON	MISCONDUCT-DRUG ABUSE
BOARD DECISION	GRANT
REVIEW AUTHORITY	130
ISSUES 1.	110.0200.0000
2.
3.
4.
5.
6.