MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            4 May 2000                  
	DOCKET NUMBER:   AR1999031249

	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.

	Ms. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. James P. Stueve		Member	
	Ms. Carol Jo Suiter		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 the Personnel Reliability Program
(PRP) disqualification be removed from his Official Military Personnel File (OMPF).

APPLICANT STATES:  That he was unaware of the appeals process and that the information was provided by him to his recruiter upon initial entry to the service.  He also states that this information should not be held against him.
In support of his application he submits several letters of recommendations and noncommissioned officers evaluation reports (NCOER).

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

He enlisted on 12 May 1989 as a combat engineer (12B) and continued to serve until he was honorably discharged on 2 December 1992 in order to reenlist.  He reenlisted on 3 December 1992 as a military policeman and continued to serve until he was honorably discharged on 3 October 1996 in order to reenlist.  He reenlisted on 4 October 1996 and is currently assigned in Germany as a military policeman (95B).

Item 36 (character and social adjustment) of the applicant’s DD Form 1961 (Record of Military Processing – Armed Forces of the United States) shows that he failed to disclose his pre-service use of illegal drugs.

On 28 October 1994, the applicant was notified by his commander that he was disqualified from assignment to a position subject to provisions of the Personnel Reliability Program and that this determination was made in accordance with the provisions of the Interim change to Army Regulation 50-5, paragraph 3-11b(2).  The commander also stated that the permanent disqualification is based upon your pre-service usage of cocaine, which renders the applicant permanently disqualified to perform Personnel Reliability Program duties.  The commander also stated that a disqualification from PRP is not an adverse personnel action and is not to be considered as such nor is it to be considered as an adverse reflection upon the applicant.  The commander further stated that the applicant’s disqualification is subject to review by the Commander, Sierra Army Depot.  The commander concluded by stating that, if the applicant decided to make a statement in his own behalf, he had five working days to do so for it to be considered as part of the review.

On 28 October 1994, the applicant acknowledged receipt of the commander’s letter for Permanent Disqualification from the Personnel Reliability Program and that this information is being included in his personnel file.  The applicant also stated that he intended to provide a written statement or rebuttal in his behalf and that if he does submit a statement, that he had five working days to do so for it to be considered as part of the Depot’s Commander’s review.

On 28 October 1994, the Commander, Sierra Army Depot reviewed the applicant’s case and concurred with the decision for permanent disqualification from the Personnel Reliability Program.

On 3 November 1994, a DA Form 3180-R (Personnel Screening and Evaluation Record) was prepared on the applicant administratively terminating him from the PRP.

In the processing of this case an advisory opinion (COPY ATTACHED) was provided by the Department of the Army Suitability Evaluation Board (DASEB).
The applicant was provided 30 days to submit matters in rebuttal to this opinion
and responded by letter within the time frame allotted.

The DASEB advisory opinion stated that the applicant’s request was not within the purview of the DASEB and that a decision summary was not attached for this request.  The DASEB researched this request and provided the following advice. 

The DASEB stated that the disqualification for the PRP is an administrative action and is not intended to be adverse.  The applicant was notified of this action at the time of disqualification and the reason for disqualification was for the 
admitted use of cocaine prior to entry on active duty.  The DASEB also stated that interim change to Army Regulation 50-5, dated 121215Z October 1994, implemented a change to Department of Defense (DOD) Directive 5210-42, which made such use, experimental or otherwise, a mandatory-disqualification factory.  Therefore, the chain of command had no option other than to disqualify the applicant.  The Army requires this disqualification remain in the applicant’s record to ensure the applicant is never again assigned to a PRP unit.  The DASEB concludes by recommending that his application be denied.

In the applicant’s rebuttal, he requested that the Board review and find in his favor for deletion of derogatory information from his OMPF.  He stated that in 1994, while stationed at Sierra Army Depot, in Herlong, California, a command review of his records revealed that prior to Active Military Service he had admitted to experimental use of marijuana and cocaine.  As a result, he was pulled from the Personnel Reliability Program (PRP), and an entry was annotated on his DA Form 2-1 (Personnel Qualification Record) and OMPF stating that he was permanently disqualified (941028) for assignment to nuclear duty positions per Army Regulation 50-5.  This information was provided by him upon initial entry into the US Army and that he has been totally honest and open on all security clearance interviews.  He also states that if this derogatory information were to be left in his records it may limit his chances for promotion and other career opportunities.  He furthers states that he is currently a military policeman 

who teaches the Drug Abuse Resistance Education and Gang Resistance Education and Training (DARE and GREAT) programs to students in four schools grades kindergarten to 12th grade.  He goes on to state that a complete and thorough review of his records will show ten years of dedicated service to the Army and his country without incident.  He concludes by stating that he is submitting several recommendations and noncommissioned officer evaluation reports from his supervisors and senior leaders which reflect his performance, that he has no history of drug or alcohol abuse use/abuse since entry in the Army, and that he does not intend to engage in such activities in the future.

Army Regulation 50-5 prescribes policies, and responsibilities for implementing the Army Nuclear Surety Program.  Chapter 3 establishes the Army Personnel Reliability Program (PRP) and implements Department of Defense Directive (DODD) 5210.42.  The PRP is designed to ensure the highest possible standards of individual reliability in personnel assigned to perform duties associated with nuclear weapons, nuclear components, and reactor facilities.  The PRP applies to U.S. citizens who are on active duty military personnel, DOD civil service employees, and civilian contractor personnel.  

Paragraph 3, of Army Regulation 50-5 governs the reliability standards for qualifying and disqualifying factors.  Paragraph 3-11b(2) states in pertinent part that drug abuse would be considered as a disqualifying factor.  It also states that (a) drug abuse is the illegal, wrongful, or improper use of any narcotics substance or ties derivatives, cannabis or its derivatives, or other controlled substances (to include prescribed medications).  For the purposed of this regulation, drug abuse also includes the illegal or wrongful manufacture, possession, or distribution of these substances.  It is not intended that isolated or experimental use of cannabis (i.e., marijuana or hashish) before entry into a PRP assignment be automatically disqualifying.  Although the certifying official must determine what constitutes experimental (isolated) use, the following is provided as a basis for making this determination: short term use of cannabis that occurred solely out of curiosity may be considered experimental provided the use was limited in duration and the individual is not using and has demonstrated an intent no to use cannabis or any other narcotic substance in the future.  (b) Persons who are diagnosed as dependent on any narcotics substance or its derivatives, cannabis or its derivatives, or other controlled substance per current Diagnostic and Statistical Manual of Mental Disorders (DSM) criteria by a medical doctor will not be selected for or retained in the PRP and are not eligible for requalification.  (c) Persons who have used a hallucinogenic drug with a potential for flashback (including lysergic acid diethylamide (LSD), phencyclidine (PCP) or its derivatives, Psilocybin, mescaline, or any other substance with similar properties) will not be selected for or retained in the PRP.

Interim Change to Army Regulation 50-5, dated 121215Z October 1994,
Implemented DODD 5210-42, dated 25 May 1993.  This interim change stated that it was not the intent of this regulation to automatically render individuals ineligible for the PRP if they had disclosed pre-service drug abuse prior to 25 May 1993 or if they had not been asked to make such a disclosure and had been certified for PRP duties after formal screening in accordance with Army Regulation 50-5 then in effect.  The interim change also stated that previously disclosed incidents of drug abuse should not be the sold grounds for denial of recertification or mandatory decertification and left these recertification and decertification determinations to the appropriate PRP “certifying officials”.  The interim change did specify that pre-service use admitted or otherwise use of illicit drugs such as heroin, heroin derivatives, cocaine, crack, phencyclidine (PCP), lysergic acid diethylamide (LSD), ecstasy, or other designer drugs, amphetamines, barbiturates, or other narcotics drugs not prescribed by proper medical authorities, and anabolic steroids will render an individual ineligible for admission to or retention in the PRP duties.  The individual will not be certified into the program or shall be permanently decertified, and those actions shall be made a matter of permanent record.

Department of Defense Directive (DODD) 5210-42, dated 25 May 1993, provided, in pertinent part, that pre-service use, admitted or otherwise discovered, of illicit drugs such as heroin, heroin derivatives, cocaine, “crack”, phencyclidine (PCP, lysergic acid diethylamide (LSD), “ecstasy”, or other “designer” drugs, amphetamines, barbiturates, or other narcotics drugs not prescribed by proper medical authorities, and anabolic steroids shall render an individual ineligible for admission to or retention in PRP duties.  The individual 
shall not be certified into the program or shall be permanently decertified, and those actions shall be made a matter of permanent record.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  The Board noted that applicant’s contentions that he was unaware of the appeals process, that his pre-service drug use was provided by him to his recruiter upon initial entry into the service and that this information should not be held against him.  However, the applicant’s DD Form 1961 shows that he failed to reveal his illegal drug abuse.

2.  DOD Directive and Army Regulation required removal of the applicant from the PRP for failure to disclose his pre-service use of cocaine.

3.  The applicant’s case was properly considered by a PRP certifying official who 
determined permanent disqualification was appropriate.

4.  The applicant has failed to provide compelling evidence that his disqualification from the PRP is unjust or inequitable.  The Board notes that removal from the PRP is an administrative action, not a punitive or adverse action.  In the absence of evidence of inequity, harm or other improper action, the applicant’s disqualification from the PRP is properly annotated in his records and will not be removed.

5.  The applicant’s personal achievements have been noted by the Board.  However, they are not sufficiently mitigating to overcome the circumstances, which led to his disqualification from the PRP.

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 the aforementioned 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:

LLS____  JPS_____  CJS_____  GRANT

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

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

INDEX

CASE ID	AR1999031249	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000504	
TYPE OF DISCHARGE	ACTIVE DUTY 	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  328		
2.		
3.		
4.		
5.		
6.