MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:.

	BOARD DATE:               15 July 1998               
	DOCKET NUMBER:       AC98-07707

	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.  The following members, a quorum, were present:

	Mr.	James C. Hise		Chairperson	
	Ms.	JoAnn H. Langston		Member	
	Mr.	Thomas D. Howard Jr.		Member	

	Also present, without vote, were:

	Mr.	Loren G. Harrell		Director	
	Mr. 	Joseph A. Adriance		Analyst	

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	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 his resignation and discharged be revoked and that he be allowed to retire with benefits.

APPLICANT STATES:  In effect, that he was forced to submit a resignation because of alleged drug use; that lab test results were negative; and that he was administratively discharged and denied retirement.

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

The applicant began the period of service under review began on 8 December 1989, when he was appointed as a warrant officer in the United States Army Reserve, and concurrently ordered to active duty to perform duties in the primary specialty of 915A00000 (Wheel Vehicle Maintenance Technician).  At the time of his appointment as a warrant officer the applicant had completed 12 years, 
8 months, and 7 days of honorable service as an enlisted soldier; attained the enlisted rank of sergeant first class/E-7, completed two overseas tours of duty in Germany; and had been awarded the Army Service Ribbon; four Army Good Conduct Medals; the Army Achievement Medal; and the Noncommissioned Officer’s Professional Development Ribbon.

The applicant’s record, for the period of service under review, documents no significant acts of valor, achievement, or service warranting special recognition.  However, the record does document the misconduct that ultimately led to the applicant’s resignation and discharge, which includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the UCMJ.

The applicant was the subject of a CID Report of Investigation for the wrongful use and possession of marijuana, dated 30 June 1995.  The evidence of record documents that the applicant completed a CID Form 87-R (Consent to Search) consenting to a search of his person, quarters, and his vehicles.  Additionally, the applicant completed a DA Form 3881 (Rights Warning Procedure/Waiver Certificate), which he authenticated with his signature.  In this form the applicant agreed to discuss the offenses with investigators, without talking to, or having a lawyer present for questioning.  After being afforded his rights and voluntarily agreeing to take part in the investigation, the applicant completed a DA Form 2023 (Sworn Statement).  The completed statement contained the applicant’s admission that he had possessed and used illegal drugs.

On 17 August 1995 the applicant accepted an NJP for wrongfully possessing three marijuana cigarettes on 16 May 1995; for wrongfully possessing some amount of marijuana on 2 June 1995; and for wrongfully using marijuana on divers occasions, between 2 March and 27 May 1995.  The resultant punishment was forfeiture of $1,200.00 per month for two months.
On 19 September 1995 the applicant tendered his unqualified resignation from the Army, under the provisions of Chapter 3, AR 635-120.  The applicant indicated that he believed that his career no longer held the possibility of promotion or productive service and he attested to his understanding that he could receive either an honorable or general discharge.  The applicant also submitted a memorandum indicating that that he had submitted the resignation, as he had agreed to, in order to avoid federal prosecution or the risk of a federal conviction.  However, he now requested the resignation action be terminated, based on the harsh impact the action would have on him and his family, and the fact that his service had otherwise been honorable.  The applicant further requested that if the resignation went forward and was approved that he be granted an honorable discharge.

On 22 December 1995 the applicant’s unqualified resignation was approved, under the provisions of Chapter 3, AR 635-120, and a GD was directed by Department of the Army.  Accordingly, on 10 January 1996, the applicant was discharged with a GD after completing 6 years, 1 month, and 3 days of the period of service under review; and a total of 18 years, 9 months, and 10 days of active military service.

On 13 April 1998 the applicant personally appeared and testified before the Army Discharge Review Board (ADRB), requesting an upgrade of his discharge. On 20 April 1998 the ADRB denied the applicant’s request and found that the discharge process was proper in all respects.

Army Regulation 635-120 sets forth the basic authority for the separation of commissioned and warrant officers from the active Army.  Chapter 3, establishes policy and procedures for unqualified resignations and states, in pertinent part, that any officer of the active Army may tender a resignation under the provisions of this section.

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 concurs with the findings and conclusions of the ADRB and presumes that the applicant's administrative separation was accomplished in compliance with applicable regulations. There is no indication of procedural errors by the ADRB which would tend to have substantially jeopardized the applicant's rights. 

2.  The Board determined there was no evidence of record, or independent evidence, to corroborate the applicant’s contentions.  The evidence shows that the applicant agreed to tender his unqualified resignation to avoid prosecution.  The record also shows that the applicant voluntarily participated in the CID investigation by:  consenting to the search of his person, quarters, and vehicles; by waiving his right to an attorney, or to have an attorney present at questioning; and by completing a sworn statement, in which he admitted to drug possession and use.  The Board found no evidence of arbitrary or capricious actions by the command, was satisfied that all requirements of law and regulation were met, and that the rights of the applicant were fully protected throughout the separation process.  

3.  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.

4.  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

________  ________  ________  DENY APPLICATION

						Loren G. Harrell
						Director