MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            10 July 2003
	DOCKET NUMBER:   AR2003085394

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Roger W. Able		Chairperson	
	Mr. Larry C. Bergquist		Member	
	Ms. Barbara J. Ellis		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 his report of separation (DD Form 214) be corrected to show that he was discharged in the pay grade of E-3 and that he receive back pay and allowances, with interest, for promotion to the pay grade of E-4.

APPLICANT STATES:  In effect, that he enlisted in the pay grade of E-1 on 1 December 1982 and on 1 September 1983, he was advanced to the pay grade of E-3.  On 4 August 1983, he was selected to furnish a urine sample during a urinalysis, which came back positive for marijuana while he was deployed from Fort Bragg, North Carolina, to Seneca Army Depot, New York.  As a result, he was reassigned to the motor pool and upon his return, he was transferred to a transportation unit.  He goes on to state that in the normal course of promotion, he would have been promoted to the pay grade of E-4 in September 1984; however, because of the urinalysis results, he was not promoted to the pay grade of E-4 until 1 March 1985.  He continues by stating that he only received E-4 pay for 2 months  and he was administratively separated in June of 1985.  He further states that nonjudicial punishment was imposed against him which reduced him from the pay grade of E-3 to the pay grade of E-2, which should have been from the pay grade of E-4 to pay grade E-3 and contends that since the urinalysis was subsequently determined to be invalid, he should have been promoted to the pay grade of E-4 on time. 

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

He enlisted on 2 December 1982 for a period of 3 years, training as a military policeman and a cash enlistment bonus.  He successfully completed his training and was transferred to Fort Bragg, North Carolina, on 27 April 1983.  He was advanced to the pay grade of E-2 on 1 June 1982 and to the pay grade of E-3 on 1 September 1983.

Although all of the specifics are not available, it appears that the applicant tested positive for marijuana during a urinalysis conducted on 4 August 1983.  The results were returned while the applicant was deployed in support of Operation Athena.  There is no record of any nonjudicial punishment (NJP) being imposed against the applicant for the positive urinalysis; however, the record shows that he also deployed to Grenada, West Indies, in support of Operation Urgent Fury during the period of 3 January to 7 April 1984 and upon his return to Fort Bragg, he was reassigned to a transportation company effective 21 May 1984.

On 27 August 1984, the applicant applied to this Board for reinstatement to duty as a military policeman and deletion of all references to a positive urinalysis administered on 4 August 1983, which had been declared as not scientifically or legally supportable by a "Blue Ribbon" panel of experts in toxicology and drug testing.

On 3 May 1985, NJP was imposed against him for possession of marijuana.  His punishment consisted of a reduction from the pay grade of E-3 to the pay grade of E-2, extra duty and a forfeiture of pay.

On the same day (3 May 1985), the applicant's commander initiated a recommendation to bar the applicant from reenlistment based on his NJP.  The applicant declined the opportunity to submit matters in his own behalf and the bar to reenlistment was approved by the battalion commander on 14 May 1985.

On 20 May 1985, the applicant submitted a request for discharge under the provisions of Army Regulation 635-200, paragraph 16-2(b), due to his perceived inability to overcome the circumstances that led to his bar to reenlistment.  The appropriate commander approved his request on 23 May 1985.

On 5 June 1985, the Board approved his request to delete all references to the 4 August 1983 urinalysis from his records and denied his request to be reinstated as a military policeman.

Accordingly, he was honorably discharged in the pay grade of E-2 on 21 June 1985, under the provisions of Army Regulation 635-200, chapter 16, due to a locally imposed bar to reenlistment.  He had served 2 years, 6 months and 20 days of total active service.

A review of his records fails to show any promotion instruments which promoted the applicant to the pay grade of E-4 while he was on active duty.

Army Regulation 600-200, in effect at the time, provided for the promotion of enlisted personnel to the pay grade of E-4.  It states, in pertinent part, that promotion to the pay grades of E-2, E-3 and E-4 are subject to the concurrence of the assigned commander and that commanders who had no authorizations for promotion to the pay grade of E-4, based on the assigned strength and limitations imposed by the Department of the Army, may promote any soldier with 18 months time in grade.  The minimum time in grade for promotion to the pay grade of E-4, without a waiver, was 6 months and the minimum time in service was 24 months, without a waiver.

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 Board has noted the applicant's contention that he would have been promoted to the pay grade of E-4 in September 1984 has been noted by the Board and found to be without merit.  The minimum time in service without a waiver was 24 months, which would have been in December 1984.  However, promotion to the pay grade is not an automatic entitlement because all promotions required the concurrence of the assigned commander and the Board finds no evidence to suggest that the commander unjustly denied him his promotion.

3.  It also appears that the NJP was properly imposed against him and that he was properly reduced from the pay grade of E-3 to the pay grade of E-2.

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

___lb ___  ___be___  ___ra ___  DENY APPLICATION

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

INDEX

CASE ID	AR2003085394	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2003/07/10	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  307	129.0500/RESTORE PAY GRADE	
2.		
3.		
4.		
5.		
6.