MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            5 October 2000
	DOCKET NUMBER:   AR2000039711

	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. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Ms. Shirley L. Powell		Chairperson	
	Mr. Elzey J. Arledge, Jr.		Member	
	Mr. Jaime Perez		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 he be reinstated to the rank and pay grade of Sergeant/E-5 (SGT/E-5).

APPLICANT STATES:  In effect, that he was reduced to Specialist Four/E-4 (SP4/E-4) in July 1987, after having served on active duty for 19 years, as a result of a faulty drug test.  He contends that he never used drugs because he valued his career and his family too much and that his friends and supervisors were just as shocked as he was when the positive test results came back.  He also claims that his test results arrived back at the unit by itself two weeks after the results of everyone else who tested had been returned.  His test results indicated that his urine contained 500 milligrams of THC (marijuana).  This stunned him and caused him to be angry because these test results jeopardized his career.  He discussed this situation with his Sergeant Major who informed him that based on his positive drug test he would receive nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), and that he would be reduced to SP4/E-4.  He states that at this time he demanded a court-martial, but was told it was too late, and he then decided to wait for his retirement date and start a new career.  In addition, he claims that his defense counsel at the time was only interested in getting him enough time to gain retirement eligibility instead of finding the truth and told him that he would be advanced back to SGT/E-5 on the Retired List after he had been retired for 
10 years.  

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

On 31 July 1988, he was released from active duty (REFRAD), in the rank and pay grade of SP4/E-4, under the provisions of chapter 12, Army Regulation 
635-200, by reason of retirement for length of service.  At the time of his REFRAD he had completed a total of 20 years and 9 days of active military service.  

The applicant’s Department of the Army (DA) Form 2-1 (Personnel Qualification Record) indicates in block 18 (appointments and reductions) that he attained the rank of SGT/E-5, which is the highest rank he attained while serving on active duty, on 7 September 1975.  It also confirms that on 11 August 1987 he was reduced to the rank of SP4/E-4, which is the rank he held on the date of his REFRAD and in which he was placed on the Retired List. 

As a SGT/E-5 the applicant’s disciplinary history includes his acceptance of NJP on three separate occasions.  He accepted the contested NJP for wrongfully using marijuana on 22 October 1976.  The DA Form 2627 (Record of Proceedings under Article 15, UCMJ) on file shows that, after consulting counsel, he elected not to demand trial by court-martial and to accept NJP.  The resultant punishment included a reduction to SP4/E-4 and he was afforded the opportunity to submit an appeal, which he did.  
On 2 September 1987, the appropriate authority considered the applicant’s NJP appeal and found that the Article 15 proceedings were conducted in accordance law and regulation and that the punishment imposed was not disproportionate to nor unjust to the offense committed.  

The record contains a properly constituted Department of Defense (DD) 
Form 214 (Certificate of Release or Discharge From Active Duty), which was authenticated by the applicant with his signature on the date of his REFRAD, 
31 July 1988.  It also shows that he was separated, under the provisions of chapter 12, Army Regulation 635-200, by reason of retirement after completing 20 years and 9 days of active military service.  In addition, this document verifies that he held the rank of SP4/E-4 on the date of REFRAD and that on the following day he was placed on the Retired List in that rank and pay grade.

Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice.  It states, in pertinent part, that NJP is imposed to correct misconduct in violation of the UCMJ.  It contains  specific guidance on administering NJP and in regard to the appeals process.  It also requires that a member be given a decision period to either accept NJP or to demand trial by court-martial and to gather matters in defense, extenuation, and/or mitigation prior to Article 15 being administered. 

Army Regulation 600-200, in effect at the time, provided policies and procedures pertaining to career management of enlisted personnel.  Chapter 7 contained Army policy in regard to the promotion and reduction of enlisted personnel.  Section XII provided guidance on the reduction of enlisted personnel and paragraph 7-64 stated, in pertinent part, that misconduct as documented by Article 15 of the UCMJ was a valid reason for taking reduction action on enlisted members in the pay grades of E-6 and below.  

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 12 sets policies and procedures for voluntary retirement of soldiers because of length of service.  Paragraph 12-3b states, in pertinent part, that retirement will be in the regular or reserve grade the soldier holds on the date of retirement as directed in Title 10 of the United States Code, section 3961 (10 USC 3961). 

Paragraph 12-6 (Advancement on the Retired List) contains guidance on the advancement of soldiers on the Retired List.  It states, in pertinent part, that retired soldiers are entitled to, when their active service plus service on the retired list totals 30 years, to be advanced on the retired list to the highest grade they held and satisfactorily served in while on active duty.

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 Board noted the applicant’s contention that his NJP was unjustly administered and that it was based on a faulty drug test, which should result in his rank being reinstated.  However, this claim is neither supported by the evidence or record nor the independent evidence submitted by the applicant.  

2.  There is no evidence to suggest that the drug test sample taken from the applicant was mishandled or that there were any procedural errors noted during the processing of his drug test results.  In addition, the NJP action imposed on the applicant as a result of this drug test was administered in accordance with applicable law and regulation.

3.  The Article 15 proceedings in question show that the applicant was afforded the opportunity to demand trial by court-martial prior to accepting NJP and that he elected not to do so.  Additionally, he was allowed to and did submit an appeal of the contested NJP action.  This merits of the appeal were appropriately considered by the proper authority and denied after a thorough review. 

4.  Based on the facts and circumstances of this case, the Board concludes that the applicant’s reduction to SP4/E-4 was the result of his own misconduct and there is no basis to reinstate him to the rank of SGT.  

5.  By law, advancement on the Retired List is only authorized when the member has satisfactorily served on active duty in a higher pay grade.  The applicant had an extensive disciplinary history as a SGT/E-5 and his reduction to SP4/E-4 was the result of his own misconduct.  Therefore, the Board finds that he does not meet this satisfactory service test and his advancement to the rank and pay grade of SGT/E-5 on the Retired List is not warranted. 

6.  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 this requirement.

7.  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

___eja __  ___jp ___  ___slp___  DENY APPLICATION

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

INDEX

CASE ID	AR2000039711	
SUFFIX		
RECON		
DATE BOARDED	2000/10/05	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1987/07/31	
DISCHARGE AUTHORITY	AR 635-200 C12	
DISCHARGE REASON	Retirement 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  310	131.0000	
2.  319	131.0900	
3.		
4.		
5.		
6.