MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 16 September 2003
         DOCKET NUMBER: AR2003090054

         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. Yvonne J. Foskey		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Melvin H. Meyer		Member
Ms. Karen A. Heinz		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, under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD)

APPLICANT STATES: In effect, that his legal advisor informed him that his discharge would be automatically upgraded within two years, and he has been informed by the Department of Veterans Affairs (DVA) that this has not been accomplished. He claims his discharge is unjust because he was punished twice for the same offense. First by court-martial and second by being discharged. He states that the time this separation action was taken against him, he was only four years away from retirement. In support of his application, he provides three character references and college transcripts.

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

He initially entered active duty on 26 May 1971 and continuously served through reenlistments until he was honorably discharged on 29 July 1984. He reenlisted 30 July 1984 and served until receiving a GD on 30 October 1987. His record shows that he was trained and served in military occupation specialty (MOS) 76Y (Unit Supply Specialist). His record also shows that he earned the following awards during his tenure on active duty: National Defense Service Medal; Army Commendation Medal; Army Good Conduct Medal, Army Service Ribbon; Overseas Ribbon with numeral 3; Recruiter Badge; Noncommissioned Officer Professional Development Ribbon, and Drivers Badge.

The applicant’s Personnel Qualification Record (DA Form 2-1) confirms that the highest rank he attained while serving on active was sergeant first class (SFC). Item 18 (Appointments & Reductions) also verifies that he was reduced to the rank of sergeant (SGT) on 30 July 1987.

On 10 April 1987, the applicant was informed that his unit commander was considering whether he should be punished under Article 15 of the Uniform Code of Military Justice (UCMJ) for the wrongful use of marijuana at some unknown time before 16 March 1987, as detected by biochemical testing.

On 15 April 1987, the applicant declined to accept nonjudicial punishment (NJP) under Article 15, UCMJ and demanded a trial by court-martial.

While the applicant’s court-martial was pending, on 14 May 1987, the unit commander initiated separation action on the applicant for the drug related misconduct as is required under the provisions of paragraph 14-12c,
Army Regulation 635-200, due to his drug related misconduct.

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On 18 May 1987, the applicant consulted with legal counsel, and after being advised of the basis of the contemplated separation action, he completed his election of rights. He requested consideration of his case by an administrative separation board with representation by military counsel.

On 30 July 1987, the applicant was tried for the drug related offense by a special court-martial (SPCM). He was found guilty of the wrongful use of marijuana between 14 February 1987 and 16 March 1987. The resultant sentence included a reprimand, reduction to the grade E-5, and forfeiture of $300.00 pay per month for six months.

On 18 August 1987, the unit commander submitted his recommendation that the applicant be separated under the provisions of paragraph 14-12c, Army Regulation 635-200 based on his drug related offense.

On 11 September 1987, the Deputy Staff Judge Advocate determined the separation packet was legally sufficient to support the applicant’s discharge and directed a board of officers be convened to determine if the applicant should be discharged and the characterization of his service.

On 19 October 1987, the applicant again consulted legal counsel and after again being advised of the basis for the contemplated action to separate him for misconduct and its effects, completed an election or rights waiving his right to have his case considered by a board of officers contingent on his receiving a characterization of service no less favorable than under honorable conditions - otherwise referred to as a GD.

On 26 October 1987, the separation authority approved the applicant’s separation under the terms of the applicant’s conditional waiver and directed that he receive a GD. On 30 October 1987, the applicant was discharged accordingly.

The DD Form 214 issued to the applicant on the date of his separation shows that he was separated under the provisions of paragraph 14-12c, by reason of misconduct. This document also shows that at the time of his separation, he held the rank of SGT and he had completed a total of total of 16 years, 5 months, and 5 days of creditable active military service.

The record gives no indication that the applicant requested an upgrade to his discharge from the Army Discharge Review Board (ADRB) within its 15-year statute of limitations.

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Army Regulation 635-200 sets forth the policy for the separation of enlisted personnel. Chapter 14 contains the policy guidance for separation by reason of misconduct. Paragraph 14-12c contains the policy for separation for misconduct due to the commission of a serious offense, and sub-paragraph (2) pertains to the separating drug offenders. It stipulates that first time drug offenders in the grade of sergeant and above, and all soldiers with 3 years or more of total military service, active and reserve, will be processed for separation upon discovery of a drug offense. These provisions provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service. The issuance of a discharge under other than honorable conditions is normally considered appropriate.

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 Board notes the applicant’s contention that he was informed by his legal advisor that his discharge would be automatically upgraded within two years, and it carefully considered the character references he submitted in support of his case. However, it finds these factors are not sufficiently mitigating to warrant the requested relief.

2. The applicant is advised that the Army has no policy to automatically upgrade discharges. Each case is decided on its own merits when an applicant submits an application to either the ADRB or this Board requesting 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. There is no indication that the applicant ever requested an upgrade to his discharge prior to his application to this Board.

3. The evidence of record confirms that the applicant’s separation processing was accomplished in accordance with the applicable regulation. The Board takes special note of the fact that the applicant’s discharge was accomplished under the terms of his own conditional waiver. Thus, the Board finds no error or injustice related to the applicant’s separation processing.

4. Lacking evidence to the contrary, the Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Further, it finds that the character of the applicant’s discharge accurately reflects his overall record of service. Therefore, the Board concludes that an upgrade to his discharge is not warranted at this time.

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5. 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.

6. 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

__FE__ ___KH__ ___MM_ _ DENY APPLICATION

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

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INDEX

CASE ID	AR
SUFFIX
RECON
DATE BOARDED
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.