PROCEEDINGS

	IN THE CASE OF:         

	BOARD DATE:            9 December 1999
	DOCKET NUMBER:   AR1999032236

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Loren G. Harrell		Director	
	Mr. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Ms. JoAnn H. Langston		Chairperson	
	Mr. Thomas D. Howard, Jr.		Member	
	Mr. James P. Steuve		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
            records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his discharge under other than honorable conditions be voided and that he be reinstated to the rank of staff sergeant (SSG) and returned to his USAR unit.

3.  The applicant states, in effect, that he was unjustly discharged in violation of Army Regulation 135-178 without the benefit of an administrative separation board that he was entitled to receive by virtue of his having served over 6 years of service.  He goes on to state that he participated in the Army Urinalysis Program on 16 August 1997 and was notified that the sample of urine he provided tested positive for cocaine and that he was being processed for separation from the service.  He further states that he contacted the supervisory staff administrator for his command and was advised to contact the legal service office.  In doing so he was advised to elect to appear before an administrative separation board so that he could obtain the litigation packet for his urinalysis test results.  Accordingly, he completed his election form to appear before an administrative separation board because he did not use drugs and turned it in to the supervisory staff administrator within the prescribed timeframe.  However, the next notification he received was his discharge orders, which discharged him under other than honorable conditions, because he failed to submit an election form within the prescribed timeframe.  In support of his application he submits a statement from the supervisory staff administrator and his legal counsel at the time.

4.  The applicant’s military records show that he enlisted in the USAR on 1 December 1983 for training as an operating room specialist and remained in the USAR through a series of continuous reenlistments.  He was promoted to the rank of SSG on 27 June 1995.

5.  On 4 December 1997 the applicant’s commander notified the applicant that he had tested positive for cocaine and was being recommended for separation from the service with a general discharge.  He further advised the applicant that he was suspending action for 45 days to allow the applicant to consult counsel and exercise his privileges.  The applicant was also advised that he had 30 calendar days from the date of receipt to execute his options and that failure to respond within 30 days would constitute a waiver of his rights.  The notification was dispatched via Certified mail by the supervisory staff administrator and the applicant acknowledged receipt. 

6.  On 10 March 1998 the Acting Command Judge Advocate prepared a Memorandum for Record indicating that the commander had recommended that the applicant be discharged with a General Discharge Certificate but that his failure to respond was effectively a waiver of his rights to appear before a separation board. He opined that given the fact that the applicant was a SSG involved with illegal use of cocaine, it would be appropriate to discharge him under other than honorable conditions.  

7.  On 10 April 1998 the Regional Support Command published orders which reduced the applicant to the pay grade of E-1 and discharged him from the USAR under other than honorable conditions, effective 8 April 1998, under the provisions of Army Regulation 135-178, paragraph 2-9g.

8.  The applicant submitted his application to this Board with the assistance of counsel on 7 August 1998.  The supporting documents submitted with his application consists of a statement from the GS-11 supervisory staff administrator (also a USAR lieutenant colonel) who states that he remembers counseling the applicant and remembers that the applicant provided him the election statement requesting to appear before an administrative separation board within the prescribed timeframe.  He further states that he included it in the packet and forwarded it to his higher headquarters and was surprised when he learned that the applicant had been discharged for failure to respond.  He also opined that the applicant did respond, that he was entitled to a board, and that proper administrative procedures were followed in forwarding the recommendation for separation with the election statement to the higher headquarters. 

9.  The statement from the applicant’s legal counsel indicates that he did in fact counsel the applicant and that although he does not remember the applicant, it is policy at the legal office that personnel never be advised to waive a board because it’s the only way that a copy of the litigation packet may be obtained.  He further states that he has never advised a soldier to waive a board at an initial meeting.

10.  A review of the applicant’s records failed to reveal that the applicant had ever received any disciplinary action during his career.

11.  Army Regulation 135-178 serves as the authority for the administrative separation of USAR and National Guard soldiers.  Paragraph 2-9 g states, in pertinent part, that failure to respond within 30 calendar days from date of receipt of the notice of the proposed separation will constitute a waiver of these rights.

CONCLUSIONS:

1.  The actions taken by the commander to recommend the applicant for administrative separation from the service and to notify the applicant by accountable mail was in accordance with the applicable regulations.

2.  While the Board cannot determine with any degree of certainty when he signed for the notice or when he turned in his election statement to the supervisory staff administrator, the Board is convinced that he did in fact complete his election statement to appear before an administrative separation board within the prescribed timeframe.

3.  The statement from legal counsel that he has never advised a soldier to decline a Board, in order to obtain a litigation packet, coupled with the statement from the supervisory staff administrator indicating that he specifically remembers adding the statement to the separation packet prior to forwarding the packet to higher headquarters is significantly convincing evidence that the applicant did elect to appear before a board.  Additionally, the applicant had nothing to lose by requesting a board and given the discharge he received, had everything to gain. 

4.  The Board also notes that he was an active, participating member of the USAR with no documented record of disciplinary action in his record and that he submitted his application to the Board within 4 months of his discharge.  

5.  Based on the available evidence it appears to the Board that an administrative error during the processing of his separation packet resulted in his election statement being separated from the packet; which resulted in the applicant being unjustly denied his due process of appearing before an administrative separation board.   

6.  Therefore, the Board finds that it would be in the interest of justice to reinstate the applicant to the USAR in the same rank and status that he held prior to the administrative separation action being initiated, that he receive all back pay, allowances that he would have received had he not been discharged, and that he be given the appropriate creditable service for retirement and pay purposes based on the average of his last 3 creditable years of USAR service.

7.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected:

a.  by showing that the 8 April 1998 discharge from the USAR pertaining to the individual concerned is voided;

b.  by reinstating him to the USAR in the same rank and status that he held prior to his discharge; and

c.  by awarding him the appropriate creditable service for retirement and pay purposes (based on an average of his last 3 years of creditable USAR service) with entitlement to all back pay and allowances for that service.

BOARD VOTE:  

__jhl____  ___jps___  ___tdh __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____JoAnn Langston_____
		        CHAIRPERSON

INDEX

CASE ID	AR1999032236	
SUFFIX		
RECON		
DATE BOARDED	1999/12/09	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1998/04/10	
DISCHARGE AUTHORITY	AR 135-178	
DISCHARGE REASON	594	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  432 	144.0211/A02.10	
2.		
3.		
4.		
5.		
6.