MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:  1 September 1999
	DOCKET NUMBER:   AR1999016097

	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. Theodore G. Heartley		Analyst	

  The following members, a quorum, were present:

	Mr. Stanley Kelley		Chairperson	
	Mr. James E. Anderholm		Member	
	Mr. Kenneth L. Wright		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 records be corrected to show his military service began on 4 March 1976 vice 23 May 1982 and credit for completion of 20 years of qualifying service for retirement pay at age 60.

APPLICANT STATES:  In effect, that he was unfairly discharged from the New York Army National Guard (NYARNG) as a result of a positive urine test for cocaine; that at the time of the drug test, testing officials were not aware and never asked him about the prescription medication, Tylenol with codeine, he was taking for pain from recent dental work and from injuries sustained during his deployment to Operation Desert Storm; and that during his administrative separation board hearing on 22 April 1995, board officials ignored his evidence of previous negative drug test results and discounted his doctor’s testimony concerning his use of prescription medication.

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

He initially entered military service in the NYARNG on 4 March 1976.

DA Form 5248-R, report of unfavorable information for security determination, dated 28 February 1994, indicated that on 28 Aug 1993, he tested positive for the use of cocaine as a result of a command directed urinalysis test; and that he was pending discharge for his misconduct.

There was nothing contained in his official file concerning a record of proceedings from an administrative separation board.

An order from the NYARNG, Office of the Adjutant General, dated 15 November 1996, directed his discharge effective 15 June 1996 in accordance with the provisions of Army Regulation 135-178 and the verbal order of the adjutant general.  

His National Guard Bureau Form 55b, report of separation and record of service, indicated that he was discharged from the NYARNG on 15 June 1996 in the rank of sergeant.  His service was characterized as honorable.

Army Regulation 135-178 pertains to the separation of enlisted personnel in the U.S. Army Reserve Component.  Chapter 7 states, in effect and in pertinent part, that abuse of illegal drugs is serious misconduct and USAR Component members may be discharged under this chapter, under other than honorable conditions, although an honorable or a general discharge may be granted.  In cases wherein the individual has more than 3 years of service or a discharge under other than honorable conditions is authorized, a hearing by a board of officers may be requested with representation by legal counsel and present matters in mitigation and extenuation.  The separation authority may approve the findings of the board of officers but may not impose a discharge more harsh than that recommended by the board of officers.

His NG annual statement of retirement points dated 25 August 1997, indicated a complete summary of his total retirement points and total number of years of qualifying service for retired pay including the beginning and ending dates of retirement years (RY).  He earned 6 years of qualifying service for RY from 4 March 1976 to 3 March 1982; 4 years of qualifying service for RY from 24 May 1982 to 23 May 1986; 4 years of qualifying service for RY from 1 April 1987 to 23 May 1990; and 5 years of qualifying service for RY from 19 May 1991 to 23 May 1995.  This report indicated a total of 1650 points for retired pay and 
19 years of qualifying service for retired pay.

Army Regulation 135-180 prescribes the policy and procedures for granting retired pay benefits at age 60, under Title 10, United States Code, Chapter 67, sections 1331 to 1337.  This regulation specifies, in pertinent part, that to be eligible for retired pay an individual must have attained age 60 and completed a minimum of 20 years of qualifying service and that subsequent to 1 July 1949, qualifying service is granted only for each year of service an individual earns 
50 or more retirement points.

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 request lacks merit when the evidence of record is considered.

2.  The evidence of record correctly establishes the beginning of his service in the National Guard on 4 March 1976.

3.  There was nothing in the evidence of record or evidence submitted by him to corroborate his assertion that his discharge from the National Guard for his use of cocaine, an illegal drug, was erroneous or unjust. 

4.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.  The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.

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 the aforementioned 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

___SK__  ___JA___  ___KW___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999016097	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990901	
TYPE OF DISCHARGE	(HD)	
DATE OF DISCHARGE	19960615	
DISCHARGE AUTHORITY	AR135-178	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	135	
2.		
3.		
4.		
5.		
6.