MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           03 February 1999                   
	DOCKET NUMBER:   AC98-12621
                                              AR1998014463

	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. Michael L. Engle		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Mr. Fred K. McCoy		Member	
	Mr. Mark D. Manning		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 his record of nonjudicial punishment (NJP) be set aside and his Federal Bureau of Investigation (FBI) record be purged.

APPLICANT STATES:  That he received NJP for wrongful use of a controlled substance and was given a fine and restriction to post.  The NJP is showing up on FBI records as being a misdemeanor, which is incorrect.  He further states that he was honorably discharged, never received a court-martial, and knows of no reason why this incident should be identified as a misdemeanor on the FBI records.  He contends that he was fired from his job because his former employer claimed he falsified his employment application.

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

He enlisted in the Army on 21 June 1991 for 2 years.  He successfully completed his initial training and was assigned as a lance crewmember (13N) in the Federal Republic of Germany.

On 14 April 1992 the applicant received NJP under Article 15, Uniform Code of Military Justice, for wrongful use of cocaine.  The punishment included a forfeiture of $180.00, reduction to private (E-1), and 14 days extra duty and restriction.

On 11 July 1992 the applicant’s commander initiated a Bar to Reenlistment Certificate (DA Form 4126) citing the applicant’s NJP and two incidents of AWOL (1 day each) in July 1992.  The applicant signed the form indicating that he did not desire to submit a statement in his own behalf.  The appropriate authority approved the bar certificate on 13 July 1992.

On 13 July 1992 the applicant voluntarily requested to be discharged from the Army under the provisions of Army Regulation 635-200, paragraph 16-5b, citing that he perceived it unlikely that he would be able to overcome the local bar to reenlistment.  He agreed to an early separation, asking for a release date of no later than 1 August 1992.

Accordingly, the separation action was approved by the appropriate authority and the applicant was honorably discharged by reason of a locally imposed bar to reenlistment.  He completed 1 year, 1 month and 3 days of creditable active service.

An FBI report, as of 24 November 1997, shows the applicant as having been “arrested or received” on a charge of wrongful use of cocaine on 2 April 1992 and that he received NJP as described above.  The report disposition of the charge is shown as “Article 15.”  The report does not characterize the charge as being a misdemeanor or a felony.

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 applicant’s punishment for wrongful use of a controlled substance was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  The applicant has failed to show through the evidence submitted or evidence of record that what the Army did in his case was in error or unjust.

3.  The FBI record accurately reflects the actions taken by the Army.  It does not indicate that the applicant was charged with a misdemeanor.  However, even if the FBI record were in error, it is not a military record of the Department of the Army and, therefore, this Board does not have the authority to change it.

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

____X____  _____X___  ____X____  DENY APPLICATION

						Loren G. Harrell
						Director