MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           7 September 2000                   
	DOCKET NUMBER:   AR2000037249

	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.

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Celia L. Adolphi		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Thomas B. Redfern, III		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:  That the Article 15 dated 6 June 1990 be expunged from his records as well as all records pertaining to his administrative discharge board proceeding and outcome, and that he be allowed to reenlist.  He also requests the opportunity to address the Board.  

APPLICANT STATES:  The applicant defers to counsel.

COUNSEL CONTENDS:  That the commander who ordered the applicant’s urinalysis, nonjudicial punishment, and discharge board did not have the jurisdiction to do so.  He was assigned to Headquarters and Headquarters Battery (HHB), 3d Battalion, 44th Air Defense Artillery (3/44th ADA) in April 1989.  In January 1990, he was relocated to Battery A, 3/44th ADA with orders to follow. In April 1990, before those orders were issued, the applicant was ordered by the A Battery commander to undergo a urinalysis.  The test came up positive for marijuana.  Regulation provides that a commander is empowered to direct individuals to submit to urinalysis.  The A Battery commander was not the applicant’s commander in April 1990.  On 24 May 1990, Brigadier General (BG) T___ commenced Article 15 proceedings against the applicant.  Regulation provides that a commander may administer nonjudicial punishment; BG T___ was not the applicant’s commander.  On 14 June 1990, the A Battery commander initiated elimination action against him.  Not until 20 June 1990 were orders finally issued assigning the applicant to A Battery, with a report date of    30 June 1990.  On 19 July 1990, a board of officers voted to discharge the applicant.  The board recorder signed on behalf of the president of the board but without providing the required explanation of why he did not himself sign the record.  The record contained a section for the appointing authority to approve the findings and recommendation but he did not sign it or otherwise indicate on it his approval.  Instead, he issued a memorandum to the effect that the recommendation for discharge was approved but which upgraded the discharge to honorable.  The applicant’s separation orders and his DD Form 214, Certificate of Release or Discharge from Active Duty, identified his command not as A Battery but as HHB, 3/44th ADA.  These errors worked to the substantial prejudice of the applicant.  The A Battery commander did not have the authority to seek the separation of the applicant or to make recommendations with respect to separation or retention.  That commander testified at the board that “…One shot with drugs or alcohol, you make a mistake and you are gone.”  However, the HHB commander testified “…A soldier should have a chance to be rehabilitated if their track record shows that they are a good soldier.”  The regulation only requires processing for separation; separation is not inevitable.  Had the proper command processed him, the A Battery commander would not have testified at the board and the HHB commander would have retained the applicant for the discretionary probationary period so he could rehabilitate himself.  In addition, the separation authority is required to consider the member’s potential for rehabilitation and further useful military service.  The regulation requires that adequate counseling and rehabilitation measures be taken before initiating separation action against a soldier when the reason for separation so specifies.  Both his command and the board failed to make any reference to rehabilitation potential despite provisions in the regulations.  

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

He enlisted in the Regular Army on 7 September 1976.  He was promoted to Sergeant First Class, E-7 with a date of rank of 1 January 1989.

On 10 April 1989, the applicant was reassigned from HHB, 108th ADA Brigade, Germany to HHB, 3/44th ADA, 32d Army Air Defense Command (AADCOM), Germany where he performed duties as an Operations Sergeant and as the Battery First Sergeant.  He apparently departed in January 1990 to attend a school and upon his return in April 1990 was reassigned to A Battery, 3/44th ADA as a Platoon Sergeant with orders to follow.

On 10 April 1990, the applicant underwent a routine command-directed urinalysis ordered by the commander, A Battery.  On 7 May 1990, the Alcohol and Drug Control Officer notified the commander, A Battery that the applicant came up positive for THC (marijuana) on a urinalysis.

On 8 May 1990, the A Battery, 3/44th ADA commander forwarded a request to the, 3/44th ADA commander for approval to relieve him for cause.  The battalion commander approved the request on 8 May 1990.  

On 24 May 1990, the 200th Theater Army Materiel Management Center (TAMMC) commander initiated nonjudicial punishment action under Article 15, Uniform Code of Military Justice against the applicant for wrongful use of marijuana.  On 6 June 1990, that commander imposed a punishment of a forfeiture of $800.00 pay for 2 months.  The applicant appealed the punishment.  On 20 June 1990, the servicing Judge Advocate opined that the proceedings were conducted in accordance with law and regulation and the punishments imposed were not unjust or disproportionate for the offense committed.  On       20 June 1990, the 21st Theater Army Area Command commander, a Lieutenant General, denied the appeal.  

On 14 June 1990, the A Battery commander initiated separation action under the provisions of chapter 14, paragraph 14-12c, Army Regulation 635-200 for misconduct – commission of a serious offense.

The applicant acknowledged the separation action.  He requested consideration of his case by an administrative separation board, requested personal appearance before such a board, and requested representation by consulting counsel.  He stated he did submit statements in his own behalf but no statement is available.
On 14 June 1990, the 200th TAMMC commander appointed an administrative separation board to hear the applicant’s case.  

On 20 June 1990, orders were published assigning the applicant from HHB to    A Battery, 3/44th ADA with a report date of 30 June 1990.  An undated endorsement amends these orders to further assign the applicant to A Battery effective 30 June 1990.  On 13 July 1990, the assignment orders were rescinded. On 13 July 1990, new orders were published assigning him from HHB to             A Battery with a report date of 30 June 1990.

On 19 July 1990, the separation board was held.  The A Battery commander testified that he knew the applicant when the applicant was the First Sergeant of HHB and had requested him from the Battalion Sergeant Major, who allocated non-commissioned officers (NCOs) within the battalion, numerous times.  He finally got him as his second platoon sergeant when the applicant returned from school in April (1990) until he was relieved of duty.  He testified it was hard for him to say he did not want the applicant in the unit (after the incident) because he was an outstanding non-commissioned officer.  He said his performance continued to be outstanding and he thought he could continue to perform well in the Army, but not in his unit.  However, according to regulation E-5s and above do not get another chance.  The HHB commander testified that the applicant left his unit in January (1990).  With the Army getting smaller, they needed to retain their best soldiers.  Soldiers should be able to remain in the military if they made a mistake.  The whole person concept should be looked at.  He could not have the applicant back in his unit.  If he were a commander in another brigade, he would take the applicant as a platoon sergeant.  The applicant testified that he was assigned to A Battery, 3/44th ADA.  He was shocked when his urine came back positive.  (In response to an earlier question from the recorder, he testified that he talked to the Criminal Investigation Command after he came up positive but did not tell them where he got the drugs from.)  He thought he was exposed to the drug when he went to a party at his brother-in-law’s house.  He could still train soldiers and rebound from a mishap.  He testified that he was “totally assigned to A Battery.”  

The board found that the allegation of misconduct, use of controlled substances was supported by the evidence and that separation was warranted.  It recommended the applicant be separated due to his misconduct and issued a general discharge under honorable conditions.  The DA Form 1574, Report of Proceedings by Investigating Officer/Board of Officers is signed by the recorder and two members of the board.  The recorder signed for the president of the board.  (Section VI states that if any voting member or the recorder fails to sign in that section, the reason for not signing should be entered where his signature should appear.)  A Worksheet, Verbatim Findings and Recommendations, is signed by all three members of the board.

The appointing authority, the 200th TAMMC commander, did not complete or sign section VIII of the DA Form 1574 but on 13 August 1990 he approved, by endorsement, the recommendation to discharge the applicant but directed he be issued an Honorable Discharge Certificate.

On 15 August 1990, the applicant was discharged, in pay grade E-7 under the provisions of Army Regulation 635-200, Chapter 14 for misconduct – commission of a serious offense.  He had completed 13 years, 11 months and 9 days of creditable active service and had no lost time.  His DD Form 214 and his separation orders show his duty of assignment as HHB, 3/44th ADA.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Paragraph 14-12 discusses separation for acts or patterns of misconduct.  Specific categories of acts or patterns of misconduct are minor disciplinary infractions (paragraph 14-12a), a pattern of misconduct (paragraph 14-12b), and commission of a serious offense (paragraph 14-12c).  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  Soldiers in the grades E-5 through E-9 will be processed for separation upon the first discovery of a drug offense.  Paragraph 1-18 states that commanders will ensure that adequate counseling and rehabilitative measures have been taken before initiating action to separate a soldier for one of several reasons, to include minor disciplinary infractions or a pattern of misconduct (paragraph 14-12a and b).  Paragraph 2-6 states that when a case has been referred to and action completed by a separation board and the board has recommended separation for misconduct, the separation authority may direct separation for misconduct.  He may approve the recommendation.  He may disapprove the recommendation and direct retention if the file indicates that the soldier has potential for full effective duty.  He may approve the recommendation and suspend execution of the separation when the soldier’s record shows sufficient potential for full effective duty.

Army Regulation 27-10 prescribes policies and procedures pertaining to the administration of military justice.  Paragraph 3-7 states that unless otherwise specified or if authority to impose nonjudicial punishment has been limited or withheld by a superior commander, any commander is authorized to exercise the disciplinary powers specified by Article 15.  Any commander authorized to exercise general court-martial jurisdiction or any commanding general may delegate that commander’s or commanding general’s powers.  A delegation does not divest the delegating officer of the right to personally exercise the delegating officer’s Article 15 powers in any case in which the delegating officer desires to act.

The Manual for Courts-Martial, United States, 1984, 1994 edition, part V defines “commander” as a commissioned or warrant officer who, by virtue of rank and assignment, exercises primary command authority over a military organization or prescribed territorial area, which under pertinent official directives is recognized as a “command.”  A commander may impose nonjudicial punishment upon any military personnel of that command.

Army Regulation 600-8-105 prescribes policy for the orders program of the Military Personnel System.  Paragraph 2.16A states that the effective date of an order is the date of the order unless the order confirms orders previously issued verbally.  Paragraph 1.23 states that when the situation demands immediate action, a commander may issue verbal orders.  When the verbal order involves expenditure of public funds, confirmatory written orders will be issued within 30 days.  A notation will be made in the confirmatory orders that the order confirms verbal orders of the commanding general or commanding officer and the date the verbal orders were given.

Army Regulation 600-85 prescribes policies and procedures needed to implement, operate and evaluate the Army Alcohol and Drug Abuse Prevention and control Program (ADAPCP).  Paragraph 10-3 states that commanders may direct individual soldiers, parts of units, or entire units to submit to urine testing or alcohol breath testing.

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.  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.

2.  The Board concludes the evidence of record shows the applicant was assigned to A Battery, 3/44th ADA in April 1990, prior to his being command-directed to take the urinalysis test that led to the Article 15.  The reassignment was based upon the verbal order of the battalion commander through his battalion sergeant major, who made all allocations of the NCOs in the battalion.  Regrettably, the reassignment was not followed up by confirmatory written orders in a timely manner (even though, since the expenditure of public funds was not involved, there was no time limit on issuing the confirmatory orders).  Also regrettably, when the confirmatory orders were finally published, they contained an incorrect report date.  However, even though the report date on the written orders was incorrect, based upon verbal orders the A Battery commander did have the authority to command-direct him to take the urinalysis test.

3.  The Board concludes that the applicant and counsel are under the misapprehension that an individual has one and only one commander.  Under the definition of “commander” outlined in the Manual for Courts-Martial, United States, 1984, 1994 edition, part V, the A Battery commander was only the applicant’s immediate and lowest-level commander.  He then had higher-level commanders at the battalion level and presumably the brigade level.  The commander of the 200th TAMMC was his commander at a higher level.  The applicant has provided no evidence to show the 200th TAMMC commander was not such a higher-level commander.  As such, he was authorized to impose nonjudicial punishment upon the applicant.

4.  The Board concludes that the failure to explain why the president of the separation board did not sign in section VI of the DA Form 1574 is a harmless error that did not affect the applicant’s substantive rights as the president did sign the Worksheet, Verbatim Findings and Recommendations.

5.  The Board concludes that the failure of the appointing authority to approve the separation board’s findings and recommendation by signing in section VIII of the DA Form 1574 was a harmless error that did not affect the applicant’s substantive rights as the appointing authority did sign an endorsement approving the board’s findings and amending its recommendation.

6.  The Board concludes that the fact the applicant’s DD Form 214 and separation orders contain an administrative error is insufficient to warrant granting the relief he requests.

7.  Aside from the fact that the Board has already concluded that the applicant was actually assigned to A Battery, 3/44th ADA, the Board concludes that even had the applicant been assigned to HHB no error occurred that may have worked to the prejudice of the applicant.  As an E-7, he still would have had to have been processed for separation.  The HHB commander testified at the hearing.  It is true that separation is not inevitable, but it would not have been the HHB commander’s decision to retain the applicant on the discretionary probationary basis.  That decision was in the hands of the separation authority who was the 200th TAMMC commander whether the applicant’s immediate unit was A Battery or HHB.  

8.  The regulation only requires commanders to ensure that adequate counseling and rehabilitative measures have been taken when the reason for separation for misconduct is minor disciplinary infractions or a pattern of misconduct, not commission of a serious offense. 

9.  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

__cla___  __wtm___  __tbr___  DENY APPLICATION

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

INDEX

CASE ID	AR2000037249	
SUFFIX		
RECON		
DATE BOARDED	20000907	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	126.04	
2.	100.03	
3.		
4.		
5.		
6.