MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  23 July 2002
	DOCKET NUMBER:  AR2001066022

	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. Paul A. Petty		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Ms. Gail J. Wire		Member	
	Mr. Hubert O. Fry		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 his discharge be revoked and that he be transferred to the Retired Reserve.

APPLICANT STATES:  That he has 20 good years and is eligible to retire.  He provides a copy of his discharge order, retirement point record, and a U. S. Army Reserve Personnel Command memorandum addressed to him, dated 
19 November 1998, notifying him of his eligibility for retired pay at age 60.

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

That he was a sergeant first class (SFC) in the U. S. Army Reserve (USAR) assigned to a Reserve Troop Program Unit (TPU), Headquarters and Headquarters Company, 94th Reserve Support Command, at Fort Devens, Massachusetts.  His record shows that he served continuously as an enlisted member of the Reserve Components from 17 October 1977.  As of 16 October 1998, he had 20 years qualifying for retired pay at age 60.

On 2 May 1998, the applicant provided a urine specimen in a unit drug screening urinalysis test.  On 6 May 1998, the Drug Testing Laboratory at Fort Meade, Maryland, identified the applicant's specimen as testing positive for THC (marijuana) by both the KIMS (Kinetic Interaction of Microparticles in Solution) test and gas chromatography/mass spectrometry.

On 7 June 1998, the applicant's commander notified him by memorandum that he was initiating separation from the USAR under Army Regulation 135-178, paragraph 7-11c1, for misconduct due to testing positive for THC.  On 19 July 1998, the applicant requested that his case be heard by an administrative separation board.  On 6 March 1999, the applicant, with counsel, appeared before a board of officers conducted in Boston, Massachusetts.  After hearing testimony and reviewing evidence, the board found that the allegation of the use of illegal drugs, specifically, the use of marijuana by the applicant on or about 
2 May 1998, was supported by a preponderance of evidence.  The board determined that the findings warranted separation of the applicant and recommended an honorable discharge based on his record of service.  The recommendation was approved by the commanding general and the applicant was so discharged from the USAR on 18 April 1999.

Army Regulation 135-175, paragraph 7-11c1, in effect at the time, stated, in pertinent part, that abuse of illegal drugs is serious misconduct.  Soldiers in the rank of sergeant (SGT) and above will be processed for discharge on discovery of a drug offense.

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 applicant, a senior noncommissioned officer, was properly and justly discharged for misconduct in the abuse of illegal drugs according to regulation and policy.  As such, there is no justification for revoking his discharge.  Since he was discharged and has no military status, he is not eligible for transfer to the Retired Reserve.  It is noted that he committed the misconduct on 2 May 1998, which was before he completed 20 years on 17 October 1998.  However, his discharge does not prevent him from applying for retired pay when he reaches age 60.

2.  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

__jp____  ___gw___  ___hf___  DENY APPLICATION

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

INDEX

CASE ID	AR2001066022	
SUFFIX		
RECON		
DATE BOARDED	20020723	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19990418	
DISCHARGE AUTHORITY	AR 135-178, para 7-11c1	
DISCHARGE REASON	Misconduct due to positive drug test	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	129.02 – Revocation of Orders	
2.	135.01 – Transfer between Components	
3.		
4.		
5.		
6.