MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           5 October 2000                   
	DOCKET NUMBER:   AR2000044651

	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	
	Mrs. Nancy Amos		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 his discharge orders be revoked and he be transferred to the Retired Reserve.

APPLICANT STATES:  That he served honorably from August 1970 through January 2000 and he deserves what he has earned.

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

He was born on 28 July 1953.  After having had prior service in the Regular Army and the U. S. Army Reserve (USAR), he reenlisted in the USAR on 3 August 1979.  His notification of eligibility for retired pay at age 60 (his 20-year letter) is dated 5 August 1993.

As a result of a unit drug test on 11 September 1999, the applicant tested positive for THC (marijuana).  He was processed for separation under the provisions of Army Regulation 135-178, paragraph 7-11c1 and on 15 January 2000 he was discharged from the USAR with a general discharge under honorable conditions in pay grade E-7.

Army Regulation 135-178 establishes policies governing the administrative separation of enlisted soldiers from the Army National Guard of the United States and the USAR.  Paragraph 7-11c1(1) states that first-time drug offenders in the grades of E-5 through E-9 will be processed for discharge on discovery of a drug offense for misconduct.

Army Regulation 135-180 implements statutory authorities governing the granting of retired pay to soldiers and former Reserve Component soldiers.  In pertinent part it states that after a person has been granted retired pay or has been notified that he has completed the years of service required for eligibility for retired pay at age 60, the person’s eligibility for retired pay may not be denied or revoked unless it resulted directly from fraud or misrepresentation on the part of the individual concerned.  It further states that each qualified individual is responsible for submitting an application for retired pay (DD Form 108) 6 months prior to age 60 and that those without a current military status may obtain the form from a local Reserve Component unit or by writing the Army Reserve Personnel Command.

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 this requirement.

2.  The applicant’s administrative discharge from the USAR was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

3.  The applicant is not being denied any benefit he has earned for completing 20 qualifying years for a nonregular retirement.  He is entitled to retired pay at age 60, not to a continued Reserve status until he reaches age 60.  On or about January 2013 he may apply for retired pay.

4.  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

___slp__  __eja___  __jp____  DENY APPLICATION

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

INDEX

CASE ID	AR2000044651	
SUFFIX		
RECON		
DATE BOARDED	20001005	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	135.03	
2.		
3.		
4.		
5.		
6.