MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            27 May 1999                  
	DOCKET NUMBER:   AR1999023044

	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	
	Ms. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Mr. Edward Williamson		Chairperson	
	Ms. Meta Waller 		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 any reference to his discharge for misconduct (abuse of illegal drugs) be removed from his military records.

APPLICANT STATES:  In effect, that he was never provided counsel concerning the misconduct charge, that he was not given a chance to speak on his own behalf and that the quality of testing procedures was not adhered to by the personnel conducting the urinalysis tests.     

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

The applicant enlisted on 28 April 1989 for a period of 4 years.  He served as a heavy wheel vehicle mechanic in Korea from 16 October 1989 to 20 October 1990 and served in Southwest Asia from 18 December 1990 to 16 March 1991.  He was honorably discharged in the rank of E-4 on 27 April 1993 and transferred to the Army Reserve.

Between 6-7 November 1993 the applicant tested positive for cocaine during a battalion drug testing procedure at a Major Unit Training Assembly.

On 17 May 1994 the applicant was notified of his pending separation under the provisions of Army Regulation 135-178, chapter 7, for misconduct – abuse of illegal drugs.  The unit commander recommended separation with a discharge under other than honorable conditions and based his recommendation for separation on the applicant’s positive urinalysis for cocaine.  On 18 May 1994 the applicant consulted with counsel, waived appointed counsel for consultation, waived consideration of his case by a board of officers, waived a personal appearance, waived representation by military counsel and elected not to make a statement on his own behalf.  Additionally, the applicant acknowledged that he may encounter substantial prejudice in civilian life if his service is characterized as under honorable conditions or under other than honorable conditions.  The intermediate commander concurred with the unit commander’s recommendation. On 7 January 1995 the separation authority approved the recommendation for separation and directed that the applicant be discharged with a discharge under other than honorable conditions.  Accordingly, the applicant was discharged under the provisions of Army Regulation 135-178, chapter 7, for misconduct – abuse of illegal drugs.   

On 12 August 1998, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge to general.  On 2 October 1998, the ADRB, by unanimous vote, upgraded the characterization of the applicant’s service on his discharge to general, under honorable conditions, but also voted unanimously not to change the reason and authority for his discharge. 

Army Regulation 135-178 (Separation of Enlisted Personnel) provides for the separation of enlisted personnel of the Army Reserve and Army National Guard. Chapter 7 of the regulation, in effect at the time, establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Paragraph 7-11.c.1., in pertinent part, states that abuse of illegal drugs is serious misconduct and discharge action normally will be based on commission of a serious offense.  First time drug offenders in the rank of sergeant and above, and all soldiers with 3 or more years of total military service (Regular and Reserve) will be processed for discharge on discovery of a drug offense.  A discharge under other than honorable conditions is normally appropriate for a soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the soldier’s overall record. 

Army Regulation 600-8-104 (Military Personnel Information Management/Records) prescribes the policies governing the Official Military Personnel File, the Military Personnel Records Jacket, the Career Management Individual File, and Army Personnel Qualification Records.  Paragraph 2-4 of this regulation states that once a document is placed in the Official Military Personnel File it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by:  the Army Board for Correction of Military Records, the Department of the Army Suitability Evaluation Board, Army appeal boards, Chief of Appeals and Corrections Branch of the Total Army Personnel Command, the Official Military Personnel File custodian when documents have been improperly filed, Total Army Personnel Command (TAPC-PDO-PO) as an exception, Chief of the Appeals Branch of the Army Reserve Personnel Center or Chief of the Appeals Branch of the National Guard Personnel Center.

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 contentions that he was never provided counsel concerning the misconduct charge and that he was not given a chance to speak on his own behalf, are without merit.  The evidence of record shows that, on 18 May 1994, the applicant was advised by military counsel of the basis for the contemplated action to accomplish his separation for misconduct, abuse of illegal drugs.  He elected to waive appointed counsel for consultation, waive consideration of his case by a board of officers, waive a personal appearance, elected not to provide statements on his own behalf and waive representation by military counsel.    

2.  The Board noted the applicant’s contention that the quality of testing procedures was not adhered to by the personnel conducting the urinalysis tests.  However, there is no evidence of record available to the Board, and the applicant has provided no evidence, to support this contention.
3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights. 

4.  The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.

5.  On 2 October 1998, the ADRB voted unanimously to upgrade the applicant’s character of service to general, under honorable conditions.  However, the ADRB also voted unanimously not to change the reason and authority for discharge.

6.  Evidence of record shows that the applicant was administratively separated for abuse of illegal drugs.  Documents pertaining to the applicant’s administrative discharge were properly filed in his Official Military Personnel File at the time of his separation and are still official records of the discharge process leading to his separation from the Army Reserve.  In view of the foregoing, there is no basis for removal of these documents from his Official Military Personnel File.

7.  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.      

8.  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

EW_____  MW_____  KLW____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999023044	
SUFFIX		
RECON		
DATE BOARDED	19990527	
TYPE OF DISCHARGE	(GD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR 135-178 CHAPTER 7	
DISCHARGE REASON	MISCONDUCT – ABUSE OF ILLEGAL DRUGS	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110	
2.		
3.		
4.		
5.		
6.