MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           24 May 2000                   
	DOCKET NUMBER:   AR1999034772

	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:

	Mr. John N. Slone		Chairperson	
	Mr. Mark D. Manning		Member	
	Ms. Meta Waller		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 he be assigned to the Retired Reserve.

APPLICANT STATES:  That he was advised that if he accepted a general discharge under honorable conditions, he would be able to apply for the Retired Reserve after 6 months because he had already completed 20 years of qualifying service.

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

The applicant was born on 10 January 1959.  After having had prior service in the Regular Army from 1978 – 1985, he transferred to the U. S. Army Reserve (USAR) on 5 January 1985.  

On 8 March 1998, the applicant tested positive for marijuana on a urinalysis test.

In April 1998, the applicant received his notification of eligibility for retired pay at age 60 (his 20-year letter).

On 5 April 1998, the applicant was recommended for separation under the provisions of Army Regulation 135-178 for misconduct, commission of a serious office, abuse of illegal drugs.  It was recommended he receive a discharge under other than honorable conditions.  The applicant apparently responded to the notification.  On 4 May 1998, the separation action was forwarded through channels with a recommendation that he receive a general discharge under honorable conditions.

On 10 August 1998, the applicant was notified that an involuntary separation board was appointed to consider whether he should be separated.  

On 7 November 1998, the applicant was advised by consulting counsel of the basis for the contemplated action to separate him for serious misconduct.  He waived consideration of his case by an administrative separation board contingent upon his receiving a characterization of service no less favorable than general under honorable conditions.  He did not submit a statement in his own behalf.  

The recommendation was approved (the approval action is not available) and on 1 December 1998 the applicant was discharged with a general discharge under honorable conditions.

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 7-11 provides for the discharge of an enlisted soldier for misconduct when it is determined that the soldier is unqualified for further military service by reason of minor disciplinary infractions (a pattern of misconduct consisting solely of minor disciplinary infractions); a pattern of misconduct (a pattern of misconduct consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline); and commission of a serious offense to include abuse of illegal drugs.  First time drug offenders in the grades of rank of sergeant through command sergeant major will be processed for discharge on discovery of a drug offense.  Second time drug offenders in any enlisted grade of rank must be processed for discharge.

Title 10, U. S. code, section 12685 states that a member of a reserve component who is separated for cause, except under section 12684 (separation for absence without authority or sentence to imprisonment) is entitled to a discharge under honorable conditions unless the member is discharged under conditions other than honorable under an approved sentence of a court-marital or under the approved findings of a board of officers convened by an authority designated by the Secretary concerned or the member consents to a discharge under conditions other than honorable with a waiver of proceedings of a court-martial or board.

In October 1999, guidance put out by the Under Secretary of Defense, Personnel and Readiness provided that former members of the Reserve Components who are eligible to receive retired pay at age 60 but who have terminated their Reserve status are entitled to certain benefits  

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 the aforementioned requirement.

2.  The applicant was properly discharged from the USAR, as opposed to being given the option to transfer to the Retired Reserve, for misconduct and there is no provision for eligibility to apply for assignment to the Retired Reserve after six months.

3.  However, the applicant is still eligible for retired pay at age 60 and as such is entitled to certain benefits even though he has no Reserve status.  The Under Secretary of Defense’s memorandum and attachment are provided so the applicant may utilize the administrative remedies available to obtain the documents needed to authorize him those benefits.

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

__jns___  __mdm___  __mw____  DENY APPLICATION

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

INDEX

CASE ID	AR1999034772	
SUFFIX		
RECON		
DATE BOARDED	20000524	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	135.03	
2.		
3.		
4.		
5.		
6.