MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:            31 March 1999                  
	DOCKET NUMBER:   AR1998013108

	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	
	Mr. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. Curtis W. Barbee		Chairperson	
	Mr. John H. Kern		Member	
	Mr. Walter T. Morrison		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:  That his discharge be revoked and that he be reinstated in the USAR with all back pay, allowances and service credit.

APPLICANT STATES:  That there were numerous violations of Army Regulation 135-178 in the processing of his discharge.  Most notably, he was discharged without notification even though the board of officers that considered his case recommended that his discharge be suspended for 12 months, a recommendation provided for by regulation and based on his uncontroverted exemplary service record.  He contends that he had “soldiered” his way through that rehabilitation period, having committed no new violations, which warranted his retention until he reached retirement eligibility.  He charges that his discharge was arbitrary and capricious and in violation of Army Regulation 135-178 and all other guidance on fairness, due process and demonstrated rehabilitation.

COUNSEL CONTENDS:  That the applicant’s separation board properly recommended that his discharge be suspended for 12 months, and the convening authority properly approved that suspension.  Counsel charges that absent the convening authority having additional adverse information in which to base the applicant’s discharge, the discharge was arbitrary and capricious.  If the convening authority did have additional unfavorable information, the applicant should have been given the opportunity to refute that information.

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

He enlisted in the Regular Army on 8 September 1977, was awarded the occupational specialty of telecommunication center specialist, and was promoted to pay grade E-4.  He was honorably released from active duty on 5 September 1980 and transferred to the USAR.

He remained active in the USAR and was assigned to a troop program unit.  He was promoted to pay grade E-5 on 27 November 1989.

On 15 January 1994 a board of officers was convened to determine whether the applicant should be discharged prior to the expiration of his term of service due to misconduct, use of illegal drugs.  The board found that “the Government has by a preponderance of the evidence established its burden of proving that [the applicant] DID use unlawful drugs during February 1992.”  The board also found that the applicant “has been an exemplary soldier based on the uncontroverted testimony of senior NCO’s and officers in his unit and a review of his military records.”  The board then recommended that the applicant be honorably discharged for misconduct, but that the discharge be suspended for 12 months, that he be retained in his unit during that time, and that he be subjected to unannounced urinalysis tests.

A decision paper was provided the applicant’s Army Reserve Command (ARCOM) commanding general (CG).  In that decision paper the ARCOM’s staff judge advocate had provided the CG with his options in the case, one of which was approving the board’s recommendation of discharging the applicant and disapproved the board’s recommendation to suspend the discharge.  The CG approved the board’s findings and recommendation except for that portion of the recommendation as pertained to the suspension of the discharge.

However, on the report of board proceedings, DA Form 1574, the CG circled the “approved” directive instead of “approved with the following exceptions/substitutions.”  Below that selection was the directive “Suspension of discharge” which was properly initialed.

On 19 December 1994 orders were published honorably discharging the applicant effective 5 December 1994.

Army Regulation 135-178, paragraph 2-17g, states that when a board recommends separation, it may also recommend that the separation be suspended.  But the recommendation as to suspension is not binding on the separation authority.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1.  Although confused by the CG’s inadvertent selection on the DA Form 1574, the applicant’s discharge was not suspended.  It is apparent from the CG’s clear directive on the decision paper to disapprove the board’s recommendation to suspend the applicant’s discharge that was his intent.  This is further reinforced by the addition of the directive “Suspension of discharge” on the DA Form 1574.  If the CG was approving the board’s findings and recommendation in its entirety, that directive would not have been needed.  It was only needed if the CG was approving the board’s recommendation with that exception.

2.  Contrary to what the applicant and counsel would have this Board believe, the applicant was not arbitrarily discharged without warning near the end of the suspension period.  There was no suspension of his discharge.  

3.  It appears that the length of time between the board’s deliberations and the CG’s action on the board’s recommendation has caused the applicant and counsel to believe that the board’s recommendation to suspend the discharge had been approved.  It is not uncommon for a non-routine personnel action to take a prolonged period of time to be processed through the chain of command in the reserves.  In reserve commands individuals who process the cases may only work one weekend a month.  And those people will have other responsibilities and duties in addition to processing these cases.

4.  It is apparent that the CG decided that the applicant’s offense, illegal drug use, was incompatible with continued service, regardless of his service record.  This viewpoint is shared with other traits and conditions which are also considered incompatible with military service, such as improper military appearance due to excessive body fat and active homosexuality.  Regardless of a person’s service record, these traits and conditions are not acceptable in a military environment.

5.  The elimination board found that the applicant had used illegal drugs.  An individual with the applicant’s years of service would be well aware that illegal drug use is grounds for discharge from the service.  That he chose to risk using illegal drugs with such knowledge was his choice.  Whether he would be retained in the reserves was his CG’s choice.

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

_CWB      _JHK_____  _WTM___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1998013108	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	19990331	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.03	
2.		
3.		
4.		
5.		
6.