MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 17 July 2003
         DOCKET NUMBER: AR2003086628

         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
Mrs. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Ms. JoAnn Langston		Chairperson
Ms. Regan K. Smith		Member
Mr. John T. Meixell		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 discharge under other than honorable conditions (UOTHC) be upgraded to honorable.

APPLICANT STATES: That he always tested negative on urinalysis tests until May 1985. At that time, six members of his squad and a large number of the battalion tested positive. He was reduced to pay grade E-1 and the others received a like punishment.

The applicant further states that he went on leave in July 1985. While on leave, he broke up with his girl friend, had suicidal ideations, and went to a local hospital. He was having problems with his superior noncommissioned officer (NCO). In addition, two of his friends had recently committed suicide. He was diagnosed as having a judgment disorder with depressed mood. The doctor, with the applicant's permission, contacted his supervisor and his commander and recommended the applicant receive out-patient counseling. Upon his return to his unit, he was sent to a motivation school, which recommended he be assigned to another battalion. However, he was sent to another company in the same battalion. Then he was assigned to Company E. The Staff Sergeant (the company clerk in Company C) was also transferred to Company E as the First Sergeant. The First Sergeant got the company together, introduced himself, looked the applicant directly in the eye and said, "(applicant), I'm going to finish what I started." After that, fault was always found with him.

The applicant continues that, on one occasion, the company went on a weekend barbeque. The applicant rode in the same car with Sergeant H___ and one other squad member. All of them were black. Sergeant H___ pulled out a marijuana joint, started smoking it, then passed it to the applicant and the other soldier. On the Monday following, Sergeant H___ told the applicant to take a urinalysis. He told him not to worry, just to put some water from the urinal in the bottle. The applicant did not see any other soldier take a urinalysis. He did as Sergeant H___ suggested, then Sergeant H___ turned him in to the First Sergeant. The Sergeant Major called him [the applicant] in and told him to sign his discharge papers. He asked to see a lawyer but the Sergeant Major told him to sign or he would put him [the applicant] in the stockade.

The First Sergeant then told the applicant he had 24 hours to be off the installation. He had to leave many of his belongings behind. His records show he was promoted after the entrapment incident. Although he had been ordered off post in December 1985, his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he separated on 5 February 1987. He incurred a military related disability. He was diagnosed in 1985 as requiring counseling for stress disorder. The mistreatment he received caused him extreme duress and caused him to have post-traumatic stress disorder. He liked the military service but the treatment he received in this experience was unfair and disabling.
Supporting evidence is as listed on the attached List of Exhibits.
COUNSEL CONTENDS: That this is the most meritorious case for discharge upgrade that he has seen in years. The applicant was entrapped, he was mistreated, and his commander failed to follow doctor's directions and the recommendations of the Motivational School, which worsened the applicant's physical and mental condition and resulted in schizophrenia.

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

He enlisted in the Regular Army on 20 March 1984. He completed basic training and advanced individual training and was awarded military occupational specialty 62E (Heavy construction Equipment Operator. On 14 August 1984, he was assigned to Headquarters and Headquarters Company, 1st Engineer Battalion, Fort Riley, KS.

The applicant apparently accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice on 27 March 1985 for wrongfully using marijuana. A later memorandum for record indicates that at the time the Article 15 was imposed, the applicant held the grade of E-3. Because the punishment of a reduction two grades was imposed by the company commander, the reduction was invalid. Therefore, the punishment of a reduction in rank was not imposed.

Item 18 (Appointments and Reductions) of the applicant's DA Form 2-1 (Personnel Qualification Record) indicates he was advanced to E-2 on 20 September 1984; reduced to E-1 on 27 March 1985; advanced to E-3 on 1 November 1986; reduced to E-2 on 4 December 1986; and reduced to E-1 on 5 February 1987.

A County of Fresno (California), Department of Health Transfer/Discharge Document shows the applicant was admitted on 31 July 1985 after becoming increasingly upset and having suicidal ideations after breaking up with his girl friend. He also indicated he was having some difficulty with a superior officer (sic) whom he felt was unsympathetic towards him and derogatory towards blacks. Upon discharge, the applicant was found to be alert, coherent, and rational who was not seriously depressed and not suicidal or dangerous. He was diagnosed as having a judgment disorder with depressed mood. The applicant was advised to seek "counseling" (sic) once he returned to his unit and that it was important that he resume his active duty as quickly as possible.

A Psych-Social Note from the Valley Medical Center of Fresno, Social-Psychological Case Record dated 31 July 1985 indicates the applicant denied any drug use but admitted to using alcohol moderately. He seemed to be sensitive to prejudice and racial biases. His command was alerted to the applicant's condition and recommendations for outpatient counseling to help him grieve the losses of his friends and his fiancée's breakup. The Note indicates the applicant was diagnosed with an adjustment disorder with depressed mood.

A DA Form 4856-R (General Counseling Form) dated 28 October 1985 indicates the applicant was transferred from Headquarters and Headquarters Company, 1st Engineer Battalion to Company C of the battalion sometime before this date and that he could receive a rehabilitative transfer out of Company C. His DA Form 2-1 (Personnel Qualification Record) indicates he was assigned to Company E of the battalion on 4 December 1985.

The applicant's records contain numerous counseling statements for offenses such as a dishonored check, refusing to use his assigned piece of equipment, fighting in the barracks, failure to prepare for inspection, and not reporting for duty.

On 4 December 1986, the applicant's unit conducted a random urinalysis test. Two sworn statements (from two NCOs who were assisting the observer) indicated that Private First Class P___ was next in line to be tested after the applicant. These two statements, plus a third from the observer, indicated that the applicant filled the first test bottle with plain water. After the deception was detected, he provided a "good" sample.

On 4 December 1986, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for failing to obey a lawful order to return to work. His punishment was 14 days extra duty, 14 days restriction, forfeiture of $183.00 pay for 1 month, and a reduction to pay grade E-2 (suspended for 120 days).

Apparently, the applicant underwent a command-directed urinalysis test on 5 December 1986. That test came back positive for marijuana.

On 8 December 1986, the applicant completed a separation physical and was found to be qualified for separation.

On 2 February 1987, the applicant's suspended reduction to pay grade E-2 was vacated.

On 5 February 1987, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for disobeying a lawful order to provide a urine sample and for knowingly and wrongfully using some amount of marijuana between on or about 5 November and 5 December 1986. His punishment was a reduction to pay grade E-1, a forfeiture of $329.00 pay for 2 months, restriction for 45 days, and extra duty for 45 days. He did not appeal the punishment.

On 3 March 1987, the applicant’s commander notified him that he was being recommended for separation under the provisions of Army Regulation 635-200, chapter 14-12c because he was a 2-time drug offender and nonjudicial punishment had been in vain. The applicant acknowledged receipt of this notification on 3 March 1987.

On 14 April 1987, the applicant underwent a mental status evaluation. He was found to have the mental capacity to understand and participate in proceedings and to be mentally responsible and was cleared for any administrative action deemed appropriate by his command.

On 16 April 1987, the applicant was advised by consulting counsel (Captain G___, Judge Advocate General Corps) of the basis for the contemplated separation action. He waived consideration of his case by an administrative separation board, waived appearance before such a board, waived consulting counsel, and indicated he submitted a statement in his own behalf. (No statement is available.) He acknowledged that he understood that as the result of a discharge UOTHC, he could be ineligible for many or all benefits as a veteran under both Federal and State laws and that he could expect to encounter substantial prejudice in civilian life. He acknowledged that he understood that he could, up until the date the separation authority approved his separation, withdraw the waiver and request that an administrative separation board hear his case.

On 1 May 1987, the appropriate authority approved the recommendation and directed the applicant receive a discharge UOTHC.

On 8 May 1987, the applicant was discharged, with a discharge UOTHC, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 14, for misconduct – drug abuse. He had completed 3 years, 1 month, and 19 days of creditable active service and had no lost time. The applicant signed his DD Form 214.

A Comprehensive Assessment dated 8 March 1991 indicates the applicant was diagnosed with schizophrenia with acute exacerbation, paranoid type, chronic and major depression with psychotic features. His personal/developmental history indicated that he denied using drugs and alcohol until he was in the Army and then he used everything. He stopped using LSD and methamphetamine after two friends committed suicide; he used cocaine, marijuana, and alcohol after that.

Army Regulation 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 include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed and an unfit medical condition is not the direct or substantial contributing cause of his misconduct. A discharge UOTHC is normally appropriate for a soldier discharged under this chapter.

Army Regulation 635-200 states in pertinent part 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. Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s). A general discharge is a separation from 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.

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability. The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty. Paragraph 4-3 states that an enlisted soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of UOTHC.

Army Regulation 40-501 governs the medical fitness standards for enlistment, retention, and separation. Paragraph 3-36 (Adjustment Disorders) states transient, situational maladjustments due to acute or special stress do not render an individual unfit because of physical disability but may be a basis for administrative separation if recurrent and causing interference with military duty.

On 9 March 1994, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade of his discharge. The applicant had contended in his application to the ADRB that there were only two blacks in his unit, being a black in a unit of whites was not easy, and he was continually harassed and never received equal treatment.

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. The applicant has failed to submit evidence that would satisfy this requirement.

2. The Board notes that the applicant was diagnosed with having a judgment or adjustment disorder in July 1985; however, he was not diagnosed with a mental illness that would have rendered him unable to distinguish right from wrong and to adhere to the right. An adjustment disorder, even if it had been severe (and there is no evidence to show that it was), would not have rendered him unfit due to physical disability and therefore he would not have been eligible for a medical separation.

3. The Board notes that the applicant was diagnosed with schizophrenia in 1991. However, in April 1987 competent military medical authority found him to have the mental capacity to understand and participate in proceedings and to be mentally responsible.

4. There is no evidence of record to show the applicant was in a "motivational school." While there is no evidence of record to show his commander referred him for counseling at the local mental hygiene clinic, there is also no evidence of record to show that his unit put any impediment in his way had he desired to refer himself for help.

5. The Board notes that the applicant stated that in May 1985 six members of his squad and a large number of the [mostly white] battalion tested positive. He states that he was reduced to pay grade E-1 and the other [white] soldiers received a like punishment. He also stated the sergeant who gave him the marijuana joint and then told him to add water to the urinalysis bottle was also black. The Board can find no evidence to show the applicant was the victim of racial discrimination and the above statements tend to contradict his contention.

6. In addition, the applicant was an experienced soldier at the time of his second marijuana use offense. He made a decision to accept the marijuana joint even though he knew it was wrong.

7. The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights. The evidence of record shows he was advised by a Judge Advocate General Corps captain when he waived consideration of his case by an administrative separation board. There is no evidence to show he was intimidated by a sergeant major into signing his separation packet.

8. The evidence of record does not show that the applicant was promoted after the "entrapment" incident. The Board acknowledges there is a problem with item 18 of his DA Form 2-1, which shows he was reduced to E-1 on 27 March 1985 and then advanced to E-3 on 1 November 1986 (with no intervening indication of advancement to E-2). However, it appears to the Board that the erroneous/missing information may have been due to the problem with his two-grade reduction from his first Article 15. In any case, the "entrapment" incident occurred on 4 December 1986; item 18 shows he was reduced to E-2 on 4 December 1986 and further reduced to E-1 on 5 February 1987.

9. There is no evidence of record to show the applicant was ordered off the installation in December 1985. To the contrary, the evidence of record shows he did not even take the "entrapment" urinalysis test until December 1986 and separation action was not even initiated until March 1987. He signed his discharge packet and his DD Form 214.

10. Considering the applicant’s two records of disciplinary actions for drug-related offenses, the characterization of his discharge as under other than honorable was appropriate.

11. 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

__jl____ __rks___ __jtm___ DENY APPLICATION

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

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INDEX

CASE ID	AR2003086628
SUFFIX
RECON
DATE BOARDED	20030717
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	19870508
DISCHARGE AUTHORITY	AR 635-200, ch 14.. . . . .
DISCHARGE REASON	A66.00
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	110.00
2.
3.
4.
5.
6.