MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:  11 Janaury 2001
	DOCKET NUMBER:  AR2000048007

	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	
	Ms.  Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Mr. Ernest M. Willcher		Chairperson	
	Ms. Ann M. Campbell		Member	
	Mr. Donald P. Hupman, Jr.		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 restored to the pay grade of SSG/E6.

APPLICANT STATES:  That he was reduced in rank from SSG/E-6 to SPC/E-4.  
He also states that UCMJ action should not have been taken under the circumstances in accordance with Army Regulation 600-85, paragraph 
6-4A(1&2).  In support of his application he submits a copy of his medical appointment referral slip, dated 27 September 1999, a past appointment record,
extract of Army Regulation 600-85, a copy of DA Form 2627 (Record of Proceedings Under Article 15) and a copy of DA Form 2627-2 (Record of Supplementary Action Under Article 15, UCMJ).

EVIDENCE OF RECORD:  The applicant's military records show he enlisted on 7 July 1981 as a cannon crewman.  He continues to serve and is presently serving with Company B, Womack Army Medical Center, at Fort Bragg, North Carolina, as a patient administrative specialist.

He was promoted to the pay grade of E-6 on 1 March 1995.

On 14 September 1999, he was punished under Article 15, UCMJ.  The 
proceedings are not in the available records; however, the punishment included a suspended reduction to pay grade E-5.

The applicant provided a copy of his medical appointment referral slip, dated 27 September 1999.  This document indicates that the applicant was self-referred on 27 September 1999 for alcohol abuse counseling.  

The applicant provided a copy of his past appointment record.  This document indicates that the applicant was screened as a walk-in on 27 September 1999 and was seen on 2 November 1999 for his initial appointment.

On 29 November 1999 the applicant participated in a command directed urinalysis in which he provided a urine sample that subsequently tested positive for cocaine.

On 22 December 1999 a DA Form 2627-2 was prepared and signed by the commander who imposed the 14 September 1999 punishment on the applicant.  This supplemental action vacated the original suspended punishment imposed and reduced the applicant to the pay grade of E-5.  It also indicated that the applicant was given the opportunity to rebut and that the applicant was present at the vacation proceedings.

On 23 December 1999, he was punished again under Article 15, UCMJ, for wrongful use of cocaine, a controlled substance.  His punishment consisted of a reduction to the pay grade of E-4, a forfeiture of pay (suspended if not automatically remtted if not vacated before 22 June 2000) and 45 days extra duty.

Army Regulation 27-10 states, in pertinent part, that non-judicial punishment (NJP) may be imposed to correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures; to preserve a soldier’s record of service from unnecessary stigma by a record of court-martial conviction; and for further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial.

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 6-4 pertains to the limited use policy.  It states in pertinent part, that this policy prohibits the use of the following evidence against a soldier in actions under the Uniform Code of Military Justice or on the issue of characterization of service in separation proceedings:  
(1) Mandatory urine or alcohol breath test results taken to determine a soldier's fitness for duty and the need for counseling, rehabilitation, or other medical treatment or in conjunction with a soldier's participation in ADAPCP.  (2) A soldier's self-referral to ADAPCP.  (3) Information concerning drug or alcohol abuse occurring prior to the date of initial referral to ADAPCP.

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 notes the applicant’s contention that he was reduced in rank from SSG/E6 to SPC/E-4.  However, NJP was imposed on two separate occasions in compliance with applicable laws, regulation and policies.  The punishments imposed were neither unjust nor disproportionate to the offenses, and there is no evidence of any substantive violation of any of the applicant’s rights.

2.  The Board notes the applicant’s contention that UCMJ action should not have been taken under the circumstances in accordance with Army Regulation 600-85, paragraph 6-4A(1 & 2).  The applicant participated in a command directed urinalysis on 29 November 1999 and tested positive for cocaine which is not a violation of the limited use policy.  The Board further notes that the applicant was enrolled/self referred in an alcohol abuse counseling program which did not prevent him from receiving punishment for drug abuse.

3.  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.

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

__ew___  __ac____  ___dh_____  DENY APPLICATION

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

INDEX

CASE ID	AR2000048007	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010111	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	Active duty	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  310		
2.		
3.		
4.		
5.		
6.