MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            11 August 1999
	DOCKET NUMBER:   AR1998012092

	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. Loren G. Harrell		Director	
	Ms. Deyon D. Battle		Analyst	

The following members, a quorum, were present:

	Mr. John H. Kern		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. John P. Infante		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)

APPLICANT REQUESTS:  In effect, that any and all reference made to the possession and use of cocaine be removed from his Official Military Personnel File and from the FBI’s National Crime Information Center (NCIC).

APPLICANT STATES:  That he does not believe that he should be labeled as a felon just because he failed one urine test while he was in the Army.  He further states that he knows that his actions were wrong but he has a right to purchase a gun and he still should able to pursue any of his goals as a United States Citizen. He also states that, in support of his appeal, he is submitting a copy of the results to a background check dated 20 September 1998.  However, the results of the background check are not attached to his application.

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

On 29 July 1982, he enlisted in the Army for 4 years in the pay grade of E-1 and he successfully completed his training as a light wheel vehicle mechanic.  He extended his enlistment for 10 months and on 12 February 1987, he reenlisted for 5 years in the pay grade of E-5.

On 21 March 1988, the applicant receive a General Officer Memorandum of Reprimand (GOMOR) for being in physical control of  a motor vehicle while his blood alcohol level was greater than or equal to .12 percent.  He was informed that the GOMOR would be filed in the Official Military Personnel File (OMPF) and that if he opted to present a rebuttal to the GOMOR it should be forwarded through his chain of command within five working days of receipt of the GOMOR. He opted not to submit a rebuttal to the GOMOR.

Nonjudicial punishment (NJP) was imposed against the applicant on 24 February 1989, for wrongfully using cocaine.  He had taken a urinalysis on 9 January 1989 which tested positive for cocaine.  His punishment consisted for a reduction in pay grade, a forfeiture of pay and extra duty.  Additionally, he was informed that he would be enrolled in a Track II program, that chapter proceedings would be initiated, that he may receive a letter of reprimand, that UCMJ action would be initiated and that his records would be flagged immediately.  He was also informed that the NJP would be filed on his performance fiche and he opted not to submit a statement in his own behalf.

On 2 March 1989, the applicant was notified that he was being recommended for elimination from the Army under the provisions of Army Regulation 635-200, chapter 14 for misconduct - abuse of illegal drugs.  He acknowledged receipt of the notification on 8 March 1989, indicating that he understood that he would be issued a general discharge and that he understood the effects of a less than honorable discharge.  After consulting with counsel, he waived his right to appear before an administrative separation board and he opted not to submit a statement in his own behalf.
The recommendation for discharge was approved by the appropriate authority.  Accordingly, on 6 April 1989, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 14 for misconduct – illegal use of drugs.  He had completed 6 years, 8 months and 8 days of total active and he was issued a General Discharge Certificate.

Army Regulation 27-10, in effect at the time, stated in pertinent part, that the decision to file DA Form 2627 (Record of NJP) on the performance fiche or the restricted fiche of the OMPF would be determined by the imposing commander at the time punishment was imposed.  The filing decision of the imposing commander was final and was to be indicated in item 5, DA Form 2627.

The FBI’s NCIC links over 57,000 different federal, state, and local criminal justice agencies.  The purpose of this system is to speed the exchange of information about stolen property and criminal suspects, thus improving the ability of all levels of government to combat crime.

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 NJP was filed in compliance with applicable laws, regulations, and policies.  The punishment imposed was neither unjust nor disproportionate to the offense, and there is no evidence of any violation of any of the applicant’s rights.

2.  He illegally used cocaine and he compromised the special trust and confidence placed in him as an NCO.  The NJP was appropriately placed in his OMPF and the applicant has failed to submit convincing argument to support his contention that it should be removed.

3.  The Board notes his contention regarding the information maintained on him at the NCIC.  However, the removal of information maintained by the FBI does not fall within the purview of this Board.

4.  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 the aforementioned requirement.

5.  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

__jhk____  __wtm __  ___jpi___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1998012092	
SUFFIX		
RECON		
DATE BOARDED	1999/08/11	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  328	134.000/Removal/Deletion of Record	
2.  747	144.8500/Drug use (Laird Memo)	
3.		
4.		
5.		
6.