MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:             7 June 2000                  
	DOCKET NUMBER:    AR1999020846

	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. Carl W. S. Chun		Director	
	Mr. W. E. Schnupp		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr.  Edwin S. Castle		Member	
	Mr.  James P. Stueve		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 the erroneous Noncommissioned Officer Evaluation Report (NCOER) for the period September 1994 through August 1995 (9409 – 9508) be removed from his record.

APPLICANT STATES:  In effect, that a separation board found he did not commit a serious offense as charged and recommended that he be retained on active duty.  He contends that while serving in the US Army Recruiting Command (USAREC) as a sergeant first class, he was accused of having a urine sample that was positive for marijuana.  After being notified of the positive urinalysis, which he contends was an administrative error, he demanded a hearing by a separation board.  He was suspended from his position and subjected to numerous urine tests, all of which were negative.  He claims he voluntarily requested a polygraph test, which also was negative.  During this period an annual NCOER was due and he received a report that included reference to the positive urinalysis.  He challenged the legality of putting information in his record that was still in the investigative phase but was ignored and the report was forwarded without his signature.  The separation board ruled that he did not commit any serious offense as charged and found that he should be retained on active duty.  

In support of his request, he has provided a memorandum explaining his career achievements and history; memorandums of recommendation from his sergeant major and his battalion commander; a copy of his notification of Bar to Reenlistment under the Qualitative Management Program (QMP); DA Form 1574, Report of Proceedings by Board of Officers; a memorandum from the commanding general, USAREC, directing his retention on active duty and a copy of his DA Form 2A, Personnel Qualification Record.

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

He is currently a master sergeant serving on active duty with over 22 years of service.  The record contains numerous accolades, excellent NCOER’s both before and after the incident in question, and generally infers that he has been an outstanding noncommissioned officer throughout his career.

On 24 October 1995 the applicant received a relief for cause NCOER for the period 9409 - 9508.  The rater indicated under Part IV – VALUES that the applicant had tested positive for a controlled substance.  Under LEADERSHIP, it was noted that he deviated from expected standards, and under RESPONSIBILITY & ACCOUNTABILITY, he was cited for lacking proper reasoning and judgement in off duty conduct.  The rater rated him as “fully capable” which is the middle of the three possible ratings available.

The senior rater noted in his comment that the applicant tested positive for a controlled substance.  He rated the applicant’s overall performance as “successful”, the highest rating available and his overall potential as “fair” the next to the lowest rating available.  Other than the derogatory comments noted, the report is very laudatory.

On 19 March 1996 an administrative separation board was appointed by the USAREC and convened at the Philadelphia Recruiting Battalion.  The precise nature of the allegation(s) against the applicant are not indicated on the DA Form 1574 (Report of Board Proceedings).  The report indicates that the applicant (as respondent) was present with his counsel.  The findings of the board were “That the respondent did not commit a serious offense”.  The board recommended that the respondent be retained in the military service at his current duty station.  The Commanding General USAREC approved the board’s findings and recommendation on 29 May 1996.

On 7 November 1997, the applicant was informed of a Department of the Army Imposed Bar to Reenlistment under the QMP.  The bar to reenlistment was the result of the 9409 – 9508 relief for cause NCOER.  He appealed the QMP and on 17 June 1998, the Office of the Deputy Chief of Staff for Personnel determined that the applicant’s name would be administratively removed from the QMP list, based on the decision of the administrative separation board of 29 May 1996.

In the processing of this case, a staff advisory opinion was obtained from the Department of the Army Enlisted Special Review Boards (ESRB).  The ESRB noted that the applicant had not previously appealed the 9409 – 9508 NCOER.  However, to preclude further delay, the appeal request was adjudicated and it was the ESRB’s opinion that the applicant had failed to submit sufficient compelling evidence that would warrant alteration or deletion of the contested report.  The advisory opinion was referred to the applicant for information/rebuttal but he has not replied.

The available records in this case contain no evidence of the applicant’s urinalysis, the precise allegations considered by his administrative separation board, or any reference to the conduct of a polygraph test.

Army Regulation 623-205, NCOER System, provides that relief for cause is defined as the removal of a NCO from a rateable assignment based on a decision by a member of the NCO's chain of command or supervisory chain that the NCO's personal or professional characteristics, conduct, behavior, or performance of duty warrant removal in the best interest of the U.S. Army.

The same regulation also addresses the use of unverified derogatory information and provides that no reference will be made to unverified derogatory information concerning the NCO.  References may be made only to derogatory information verified through investigations before the report is forwarded to US Army Enlisted Records Center, State AG or CG Army Reserve Personnel Command.  If the rated NCO is absolved, no comments pertaining to the incident will be included in the report.  The intent of this restriction is to prevent unverified derogatory information from being included in evaluation reports.

Army Regulation 635-200, Enlisted Personnel Separations, provides in pertinent part, that abuse of illegal drugs is serious misconduct.  Separation action normally will be based upon commission of a serious offense.  However, relevant facts may mitigate the nature of the offense.  Therefore, a single drug abuse offense may be combined with one or more minor disciplinary infractions or incidents of other misconduct and processed for separation as appropriate.  Soldiers in (a), (b) or (c) below, against whom charges will not be referred to a court-martial authorized to impose a punitive discharge or against whom separation action will not be initiated under other provisions of this regulation will be processed for separation as applicable.  "Processed for separation" means that separation action will be initiated and processed through the chain of command to the separation authority for appropriate action. The immediate and intermediate commanders will recommend separation or retention.  Recommendation will be made as to characterization of service (see para 2-2 or 2-4).  The separation reason in all separations authorized by this paragraph will be "misconduct--abuse of illegal drugs."  Voluntary (self) identification/referral in accordance with AR 600-85, paragraph 3-2, does not require initiation of separation proceedings under this section. 

(a) First-time drug offenders.  Soldiers in the grade of sergeant and above, and all soldiers with 3 years or more of total military service, Active and Reserve, will be processed for separation upon discovery of a drug offense.

(b) Second-time drug offenders.  All soldiers must be processed for separation after a second offense. 

(c) Medically-diagnosed drug dependent soldiers.  All soldiers will be processed for separation upon completion of actions required by AR 600-85.

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

1.  In summary the applicant contends that through an administrative error he was identified as having a positive urinalysis for marijuana and that he subsequently underwent numerous urine tests and a voluntary polygraph test, all of which were negative.  He asserts that a relief for cause NCOER was prepared on him before the investigation into his positive urine test was completed in violation of regulatory procedures.  Finally, he contends that he requested an administrative separation board that found he did not commit a serious offense and that he should be retained in the military service.  Based on the board’s approved recommendation, he believes the relief for cause NCOER should be removed from his records.

2.  The applicant has provided no evidence and the record contains no evidence of his positive urinalysis or the other urine tests or the polygraph test he claims to have taken.  Thus, his claim that the positive results were an “administrative error” cannot be confirmed.  Neither is there a clear indication of the allegation that was considered by the administrative separation board.  The board found that he did not commit a serious offense, which can be construed as abuse of illegal drugs or several other acts of misconduct; however, the available evidence does not show the offense of which he was exonerated.  In the absence of more definitive information regarding his urinalysis and the separation board’s findings, this Board in unable to render a determination as to whether the administrative boards finding should have resulted in removal of the relief for cause NCOER.

3.  Concerning the NCOER itself, the applicant’s positive urinalysis for an illegal drug was correctly the basis for his relief for cause.  When the urinalysis confirmed his illegal drug use the verification of derogatory information requirement was satisfied and the use of that information by his commander in relieving him of his duties was appropriate.  No error occurred in using the positive drug information as the basis for the NCOER and no further investigation was required by the commander to use it. 

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 satisfies this 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

__mkp __  ____esc____  _jps __  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

	AR1999020846	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.  111.00		
2.   111.02		
3.		
4.		
5.		
6.