MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        


                  BOARD DATE: 6 November 2003
                  DOCKET NUMBER: AR2003087831

         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. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Mr. Stanley Kelley		Chairperson
Mr. Raymond J. Wagner		Member
Ms. Mae M. Bullock		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, that his general discharge be upgraded to honorable. He also requests that his narrative reason for separation be changed.

APPLICANT STATES: In effect, that he smoked marijuana on a few occasions and subsequently tested positive on a urinalysis. He contends that he made some bad decisions but he was not dependent on marijuana. He further states that he was informed that his discharge would be automatically upgraded after six months. He contends that his attempts to get a good job have been unsuccessful because of his narrative reason for separation. In support of his application, he submits an undated letter of explanation and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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

The applicant enlisted on 5 January 1983 for a period of 4 years. He successfully completed basic and advanced individual training in military occupational specialty 05B (radio operator). He served in Grenada from
25 October 1983 through 2 November 1983.

On 13 September 1984, nonjudicial punishment was imposed against the applicant for using marijuana. His punishment consisted of a reduction to E-1, a forfeiture of pay, restriction, and extra duty.

On 18 February 1986, nonjudicial punishment was imposed against the applicant for going from his appointed place of duty without authority. His punishment consisted of a reduction to E-3 (suspended for 90 days), restriction, and extra duty.

On 28 February 1986, nonjudicial punishment was imposed against the applicant for using marijuana. His punishment consisted of a reduction to E-1, a forfeiture of pay, restriction, and extra duty.

On 17 March 1986, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for misconduct (drug abuse). The unit commander cited that the applicant was a two-time drug offender.

On 17 March 1986, the applicant consulted with counsel and acknowledged that he might encounter substantial prejudice in civilian life if a general discharge were issued. Also, he elected not to submit a statement on his own behalf.

On 24 March 1986, nonjudicial punishment was imposed against the applicant for failure to repair. His punishment consisted of 7 days of correctional custody (suspended for 30 days) and a forfeiture of pay.

The unit commander initiated action to separate the applicant under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for misconduct (drug abuse).

The intermediate commander concurred with the recommendation for separation.

On 20 March 1986, the separation authority approved the recommendation for discharge and directed the issuance of a general discharge.

Accordingly, the applicant was discharged on 2 April 1986 with a general discharge under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for misconduct (abuse of illegal drugs). He had served
3 years, 2 months and 28 days of total active service.

Item 25 on the applicant's DD Form 214 shows the entry, "AR [Army Regulation] 635-200, Chap [Chapter] 14 Para [Paragraph] 12c Section III."

Item 26 on the applicant's DD Form 214 shows the entry, "JKK."

Item 28 on the applicant's DD Form 214 shows the entry, "MISCONDUCT - DRUG ABUSE."

There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

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, established policy and prescribes procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, and abuse of illegal drugs. This regulation states, in pertinent part, that first-time drug offenders in grades E6 to E9 would be processed for separation upon discovery of a drug offense. Second-time drug offenders in grades E1 to E9 would be processed after a second offense. The regulation also states, in pertinent part, that abuse of illegal drugs is serious misconduct and separation action normally will be based upon commission of a serious offense. The separation reason in all separations authorized by this paragraph (abuse of illegal drugs) will be "misconduct - abuse of illegal drugs." The issuance of a discharge under other than honorable conditions is normally considered appropriate. However, the separation authority may direct a general discharge if such is merited by the member's overall record.

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.

The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges. Each case is decided on its own merits when an applicant requests a change in discharge. Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable. The Defense Discharge Review Standards specifically state that no factors should be established which would require automatic change or denial of a change in discharge.

Army Regulation 635-5-1 (Separation Program Designator Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators (SPD) to be used for these stated reasons. The codes listed in parentheses are transmitter codes. Where a transmitter code and an SPD code are listed, both codes will be entered in item 26 on the DD Form 214.

Army Regulation 635-5-1, in effect at the time, states the reason for discharge based on separation code “JPC (JKK)” is “Drug abuse rehabilitation failure” and the regulatory authority is Army Regulation 635-200, chapter 9.

Army Regulation 635-5-1 states the reason for discharge based on separation code “JKQ (JKH)” is “Misconduct - commission of a serious offense” and the regulatory authority is Army Regulation 635-200, paragraph 14-12c.

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. A discharge upgrade is not automatic and there is no evidence which shows the applicant applied to the Army Discharge Review Board for a discharge upgrade within the 15-year statute of limitations.

3. 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.

4. The issuance of a discharge under other than honorable conditions was normally considered appropriate; however, the separation authority directed the issuance of a general discharge in this case.

5. The applicant’s record of service included four nonjudicial punishments and for that reason his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, the applicant is not entitled to an honorable discharge.

6. Evidence of record clearly shows the applicant was a second-time drug offender and discharged for misconduct due to abuse of illegal drugs. Therefore, his narrative reason for separation is correct as reflected in item 28 on his DD Form 214.

7. It seems that item 26 on the applicant's DD Form 214 is incorrect. However, the correct separation code of “JKQ (JKH)” would appear to place the applicant in a worse position than currently and the Board will not amend item 26 without a specific request from the applicant.

8. 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

SK_____ RJW____ MMB_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2003087831
SUFFIX
RECON
DATE BOARDED	20031106
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	19860402
DISCHARGE AUTHORITY	AR 635-200, Chapter 14
DISCHARGE REASON	Misconduct (abuse of illegal drugs)
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.0200
2.
3.
4.
5.
6.