MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  5 April 2000
	DOCKET NUMBER:   AR1999028295

	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. Theodore G. Heartley		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Lester Echols		Member	
	Mr. Stanley Kelley		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:  Correction of his military records by voiding his discharge from the USAR and transferring him to the Retired Reserve.

APPLICANT STATES:  In effect, that he was honorably discharged from the USAR instead of being transferred to the Retired Reserve; and that he did not discover this problem until he was denied access to the commissary.  In support of his request, he submitted a copy of his notice of eligibility for retired pay at age 60, a 20-year letter, dated 24 January 1995.

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

He began his military service by enlisting in the Army National Guard (ARNG) on 7 April 1973.  His military service continued in a Ready Reserve unit in Baltimore, Maryland without a break beginning on 1 January 1975.  His highest attained rank was sergeant (SGT E-5).

His urine sample obtained by command urinalysis testing procedures on 21 March 1992, later revealed a positive test result for a controlled substance, tetrahydrocannabinol (THC).  On 21 April 1992, a report to suspend favorable personnel actions (FLAG) was initiated against him.  A detailed laboratory report showed further confirmatory testing on 19 January 1993 and revealed that his use of marijuana reached a level of 87 nanograms per milliliter (ng/ml); and that the Department of Defense established cutoff was 15 ng/ml.

On 2 May 1992, his unit commander initiated separation proceedings under the provisions of Army Regulation (AR) 135-178, Chapter 7, based on his misconduct, abuse of illegal drugs.  Accompanying documents indicated that he was afforded that opportunity to consult with a military lawyer; and that he was made aware of the implication of his service that could be characterized as under other than honorable including deprivation of many or all Army benefits, ineligibility of VA benefits, and deprivation of benefits as a veteran under both federal and state laws.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life as a result of receiving a discharge under other than honorable conditions.

On 6 April 1993, he completed 20 years of qualifying service for retirement at age 60.  On 25 April 1993, an administrative hearing board convened at Fort Meade, Maryland to determine if he should be retained in the USAR.  After hearing testimony from him and a laboratory expert, the board found, on the basis of a preponderance of evidence including his doctor prescribed medication, that his positive urine sample for THC could have only been caused by the use of an illegal substance.  The board further found that he had no rehabilitation potential and recommended, in view of his eligibility for retirement due to his completion of 20 years of creditable service, that he be discharged with service characterized as honorable.  On 6 July 1993, the separation authority, a major general, approved the findings and recommendation of the board.

Headquarter USAR Command order number 93-191-015 dated 8 July 1993, shows that he was separated from the USAR with an Honorable Discharge Certificate on 8 July 1993, under the authority of AR 135-178.

AR 135-178 pertains to the separation of enlisted personnel in the U.S. Army Reserve.  Chapter 7 states, in effect and in pertinent part, that abuse of illegal drugs is serious misconduct and USAR 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 to 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.  Additionally, Chapter 2 of the regulation pertains to administrative board procedures and states, in effect and in pertinent part, that when an administrative board has been convened to determine whether a soldier should be retained in military service based on misconduct, the board can only recommend retention or discharge.

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 is not warranted considering the evidence of record.

2.  The Board concludes that even though he was eligible for transfer to the Retired Reserve based on his completion of 20 years of creditable service, his discharge from the USAR based on his misconduct, prevented consideration for transfer to the Retired Reserve, a voluntary personnel action, since he was flagged at the time and regulatory provisions strictly limited the administrative board’s authority beyond recommending retention or discharge.  His signature on documents in his separation packet indicates that he was properly counseled and made aware of the possibility of adverse consequences during the process of his separation proceedings.

3.  The Board further concludes that while he could not be placed in a Retired Reserve status at the time of his USAR discharge, he is still entitled to retired pay at age 
60 according to the criteria outlined in his 20-year letter and may begin the application process upon reaching age 59 ½.

4.  His administrative separation from the USAR 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

__RO___  __LE___  ___SK__  DENY APPLICATION

						Karl F. Schneider
				     Director, Army Review Boards Agency

INDEX

CASE ID	AR1999028295	
SUFFIX		
RECON		
DATE BOARDED	20000405	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19930708	
DISCHARGE AUTHORITY	AR135-178 .  .  .  .  .  	
DISCHARGE REASON	MISCONDUCT-DRUG ABUSE	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110	
2.		
3.		
4.		
5.		
6.