MEMORANDUM OF CONSIDERATION

		IN THE CASE OF:  

		BOARD DATE:  2 December 2003
		DOCKET NUMBER:  AR2002082608

	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	
	Ms. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Patrick H. McGann		Member	
	Mr. Melvin H. Meyer		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 from the US Army Reserve (USAR) be voided and that he be reinstated in the USAR, without a break in service.

APPLICANT STATES:  That his discharge should be revoked and that he be reinstated in the USAR, without a break in service.  In support of his application, he submits two DA Forms 1574 (Record of Proceedings by Investigating Officer/Board of Officers), separation orders, and several memorandums.

COUNSEL CONTENDS:  Attorney, as counsel for the applicant, states that the applicant is appealing his discharge, dated 29 November 1999.  He was given a General Discharge after serving more than 14 years of service.  He is now requesting a review of his case because he was denied due process during his separation proceedings.  He has exhausted all administrative remedies.  The Inspector General (IG) made an inquiry into the matter and recommended that the applicant apply to this Board for further consideration of the matter.

The applicant appeared before a separation board.  The board determined that the applicant had abused illegal drugs and was recommended for a general discharge.  During the proceeding, five senior NCOs, a warrant officer, and the battalion commander all recommended retention, included was the applicant's commander.  Despite the board's recommendation, the Commander, 90th Regional Support Command (RSC), disapproved the recommendation and suspended the applicant's discharge for a period of 12 months to allow the applicant the opportunity to rehabilitate.  The applicant completed the Veterans Administration (VA) After Care Substance Abuse Treatment Program on 20 October 1999.  During his suspension, the Commander, 467TH Quartermaster Battalion, was appointed as an investigating officer, under Army Regulation 15-6. He discovered that the applicant had engaged in a pattern of misconduct and recommended administrative separation.  

On 6 October 1999, the Regional Support Group (RSG) Commander requested the RSC Commander, vacate the applicant's suspension and effectuate the separation of the applicant.  On 17 October 1999, the RSC Commander notified the applicant of his intent to vacate the suspension.  The applicant was not allowed another board proceedings, but was allowed to submit a written statement opposing the separation.  On 18 November 1999, the RSC Commander vacated the suspension and directed that the applicant be immediately discharged from the USAR.  

Counsel states that the applicant was denied due process.  He states that his separation was based upon incidents outside the suspension period.  His retention in the USAR was contingent upon his "enrollment in a drug rehabilitation program and that the chain of command supervise his rehabilitation."  The applicant was not put on notice that his suspension would be 
revoked for allegations of misconduct and recommended separation.  With the exception of two alleged acts of misconduct that occurred within minutes of each other on 1 May 1999, each alleged act in the finding of the investigator occurred prior to the date of the applicant's separation board and before the beginning of this suspension period.  

Counsel objects to the consideration of these alleged acts of misconduct in regards to his suspension.  First of all these acts, if true, occurred before the period of suspension, and are therefore completely irrelevant.  The applicant's separation was suspended to allow him to rehabilitate his performance.  However, the issue of concern was his rehabilitation and performance since the start of his suspension.  The RSC Commander's order only addressed the completion of a drug rehabilitation program, and the applicant complied.  Second, the command had an opportunity to raise these issues in the original separation board of November 1998.  By failing to do so, the command deprived the applicant of an opportunity to respond to these allegations in a full and fair hearing, as was required in a separation action based upon misconduct.  The command allowed revocation of the suspended separation under the provisions of Army Regulation 135-178, to avoid due process instead of allowing the applicant a fair and full hearing.  

Counsel also states that the investigation was not in compliance with regulations. He stated that the investigation of the alleged misconduct was improper and should not have been the basis of the applicant's separation.  Pursuant to Army Regulation 15-6, paragraph 2-3, the command was required to conduct a legal review of the investigation prior to initiation of action, which was not done in the applicant's case.  A subsequent review of the investigation demonstrates it was legally insufficient for the following reasons:  First, the applicant was not afforded representation during the investigation.  As a Reserve Technician, the applicant's job was in jeopardy if he was found to have engaged in misconduct, which would require dismissal from the service.  However, he should have been afforded representation.  Second, the recommendations were not consistent with the findings.  The investigation was initiated to inquire into the alleged disrespect of the applicant towards superiors in his unit.  The investigating officer inquired into the matters that existed prior to the applicant's separation board.  These allegations of misconduct should not have been considered since the command failed to raise the issues at his formal proceeding.  Therefore, the remaining allegations are accusations of disrespect.  

Army Regulation 15-6 mandates that the findings of the investigation must be supported by a greater weight of evidence than supports a contrary conclusion.  That is evidence, which, after considering all evidence provided, points to a particular conclusion as being more credible and probable than any other conclusion.  Paragraph 3-9b of the regulation states that the weight of the evidence is not determined by the number of witnesses or volume of exhibits, but by considering all evidence and evaluating such factors as the witness's demeanor, opportunity for knowledge, information possessed, ability to recall and relate events, and other indications of veracity.

The investigating officer failed to give the appropriate weight to the evidence. The only evidence collected was an assortment of witness statements.  He simply gathered statements and made a recommendation without concrete evidence.  The witnesses interviewed during this investigation provided little more than allegations of misconduct.  Underlying allegations were made by the 971st Quarter Master Detachment Commander, an individual that the applicant accused of misconduct just months before the investigation.  For every witness statement taken by the investigating officer, there was a subsequent statement contradicting the first statement.  Some witnesses suggested that the Detachment Commander influenced their first statement against the applicant.  As a whole, the investigation boils down to one NCO alleging disrespect on the part of another NCO, who previously accused the former of misconduct.

Counsel goes on to state that the subsequent recommendation was a form of retaliation for Whistle-Blowing.  The initiation of the investigation that ultimately resulted in the applicant being separated was the result of retaliation.  The applicant accused his Detachment Commander of falsifying his and other soldier's physical training records.  The applicant demonstrated that the Detachment Commander completed documents indicating that soldiers took their PT test on the same dates that those soldiers were not present for duty.  The Detachment Commander's records reflect that he took and passed a PT test on the same day that he was on a profile.  The applicant reported the Detachment Commander for violations of the Joint Ethics Regulation when he used a government vehicle to assist a private business installing an advertisement sign. 

Within a month of this Whistle-Blowing activity, the investigation was initiated which appeared to be irregular.  On 1 May 1999, the applicant allegedly had a disagreement with the Detachment Commander and an investigation was immediately ordered within an hour of the alleged infraction.  This was an extreme measure based on one infraction, particularly when it was noted that the investigation was instigated by the same individuals who, six-months earlier, did their utmost to keep the applicant in the Army.  

Counsel points to the wildly disparate statements offered by the Detachment Commander to support his assertion that the investigation was based upon retaliation.  Prior to the applicant's separation board, the Detachment Commander stated that he did not have anything but good things to say about the applicant.  He described him as a hard worker, dedicated, and recommended retention.  However, in May 1999, the Detachment Commander stated that he did not feel safe or comfortable working with an unstable and unprofessional soldier.  He also stated that he was afraid for his life and feared for his family.
Thus far, there is nothing to suggest any disciplinary action or any difficulty between November 1998 and May 1999.

Counsel contends that the allegations embodied in the findings were either untrue or greatly distorted by the soldiers who made them.  Counsel contends that the soldiers were responding to undue command influence exerted by the Detachment Commander in an attempt to have him removed.  His command noticed that he acted in a disrespectful manner in May 1999 and decided to document other incidents of misconducts in 1997 and 1998.

Counsel further states that the subsequent recommendation was a form of race discrimination and wrongful removal by the applicant's civilian supervisor.
The applicant worked as a unit administrator in a civilian capacity.  His Reserve Technician position was dependent upon the applicant remaining in the USAR.  If discharged, he would lose his full time position as the unit administrator.  The applicant alleges that his civilian supervisor discriminated against him on the basis of his national original and retaliated against him for whistle blowing.  His civilian supervisor also collaborated with the Detachment Commander and was the main force advocating his removal from the Reserve.

Counsel concludes that the Board recommends a finding that the applicant was wrongfully separated from the USAR and immediately reinstate or in the alternative upgrade his discharge to honorable.

EVIDENCE OF RECORD:  The applicant's military records show he entered active duty (AD) on 26 February 1986, as a petroleum supply specialist.  He was promoted to the pay grade of E-4, date unknown.  

On 26 July 1988, he was punished under Article 15, Uniform Code of Military Justice (UCMJ), for wrongful use of a controlled substance, tetrahydrocannabinol (THC).  His punishment consisted of a reduction to the pay grade of E-3.

On 27 July 1988, he was released from AD.  He was transferred to the Army Reserve.  He enlisted in the USAR on 15 October 1993, for a period of 6 years.

He was promoted to staff sergeant (SSG/E-6) effective 18 April 1996.

A urine specimen was obtained from the applicant on 8 August 1998, which tested positive for tetrahydrocannabinol (THC). 

The applicant appeared before a board of officers on 18 November 1998, and was represented by counsel, which is evident by the DA Form 1574.  The board found, by a preponderance of evidence, that the applicant did abuse illegal drugs by ingesting THC, which was discovered by urinalysis testing conducted on 8 August 1998.  The board stated that the applicant was undesirable for further retention and that the findings warrant separation from service.  They also recommended that he be discharged due to misconduct with a general discharge under honorable conditions. This action was suspended for a period of 12 months.  

On 3 December 1998, the Assistant Staff Judge Advocate (SJA) prepared a memorandum for the Commanding General (CG), 90th RSC. He stated that the board proceedings were reviewed and found to be legally sufficient.  As the separation authority, the CG's options were to:  (1) concur with the board's recommendation; (2) direct that the applicant be retained; (3) separation with an honorable conditions discharge; or (4) suspend the separation for a period of 12 months.  The applicant's noncommissioned officer in charge (NCOIC) recommended that the applicant be retained and his battalion commander recommended that he separated with an honorable discharge.  However, at the board hearing, the battalion commander recommended that the applicant be retained if he presented a written statement to his unit admitting drug use and if he apologized to the unit.  The Commander, 363rd Support Group, recommended that the applicant be separated with an Other Than Honorable Conditions Discharge.  The applicant's counsel submitted a written request for retention in the USAR that was included as part of the record of the case.  The RSC CG indorsed the memorandum and suspended the applicant's discharge for a period of 12 months.

On 6 December 1998, the CG, 90th RSC, prepared a memorandum, Subject:  Notice of Separation Board Results.  He stated that according to the findings and recommendations of a board of officers which convened on 18 November 1998, the applicant was found to have abused illegal drugs.  The board recommended that the applicant be separated with a General Discharge Under Honorable 
Conditions.  He concurred with this recommendation but suspended the separation action for a period of 12 months to allow the applicant to rehabilitate.  He informed the applicant that he must enroll in a rehabilitation program and it must be completed no later than 15 January 2000.  Upon completion of the program, a certificate must be provided to headquarters to finalize the applicant's case.

On 1 May 1999, the 467th Quartermaster Battalion Commander appointed an investigating officer.  The appointment letter that provides the purpose of the investigation is not in the available record.  The investigating officer discovered that the applicant:  committed insubordinate conduct toward a noncommissioned officer on 1 May 1999; disrespect toward a superior commissioned officer on 1 May 1999; disorderly conduct on 15 September 1998; two counts of larceny on 28 August 1998 and on 15 November 1997; wrongful use of a controlled substance on 8 August 1998; provoking speeches on 1 August 1998; missing movement on 21 March 1998; and drunkenness on 21 March 1998.  On 5 June 1999, he concluded that the applicant engaged in a pattern of misconduct and recommended administrative separation.

On 20 October 1999, the applicant completed the After Care Substance Abuse Treatment Program.

On 18 November 1999, the RSC CG informed the applicant that his 12-month suspension was vacated.  He directed that the applicant be discharged from the USAR with issuance of a general discharge certificate.  His decision was based on the applicant's misconduct during the period of his suspension of his discharge.  However, he did not consider any misconduct alleged prior to the beginning of the period of suspension. 

On 29 November 1999, the applicant was discharged under honorable conditions (general discharge) under the provision of Army Regulation 135-178.

Army Regulation 135-178 establishes the policies, standards, and procedures governing the administrative separation of enlisted soldiers from the Reserve Components.  Paragraph 1-3 states, in pertinent part, that orders discharging a soldier would not be revoked or the effective date changed after the effective date of discharge unless there was evidence of manifest error or fraud.  After the effective date of discharge, orders can be amended by the separation authority only to correct manifest errors such as the wrong character of service or to correct administrative errors such as rank, social security number, or misspelled name.

Chapter 7 of Army Regulation 135-178 establishes the policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, patterns of misconduct, commission of a serious offense, and related charges.  Paragraph 7-11c(1) states, in pertinent part, that 
abuse of illegal drugs is a serious offense and that discharge action will normally be based on commission of the offense.  It also states that a single drug abuse offense may be combined with one or more disciplinary infractions, or incidents of other misconduct, for discharge.  Individuals in pay grade E-5 and above, and all soldiers with 3 or more years of total military service (Regular and Reserve) will be processed for separation upon discovery of a drug offense.
Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) establishes procedures for investigations and boards of officers not specifically authorized by any other directive.  It applies to the Active Army, the Army National Guard, and the US Army Reserve. 

Paragraph 2-3 pertains to actions of the appointing authority.  Subparagraph 2-3b pertains to legal review.  It states that other directives that authorize investigations or boards may require the appointing authority to refer the report of proceedings to the servicing Judge Advocate (JA) for legal review.  The appointing authority will also seek legal review of all cases involving serious or complex matters, such as where the incident being investigated has resulted in death or serious bodily injury, or where the findings and recommendations may result in adverse administrative action, or will be relied upon in actions by higher headquarters.  The JA review will determine:  (1) whether the proceedings comply with legal requirements; (2) what effects any errors would have; (3) whether sufficient evidence supports the findings of the investigation or board or those substituted or added by the appointing authority; and (4) whether the recommendation were consistent with the findings.  

Subparagraph 3-9b pertains to standard of proof.  It states that unless another directive or an instruction of the appointing authority establishes a different standard, the findings of investigations and boards governed b this regulation must be supported by a greater weight of evidence than supports a contrary conclusion, that is, evidence which, after considering all evidence presented, points to a particular conclusion as being more credible and probable than any other conclusion.  The weight of the evidence is not determined by the number of witnesses or volume of exhibits, but by considering all the evidence and evaluating such factors as the witness's demeanor, opportunity for knowledge, information possessed, ability to recall and relate events, and other indications of veracity.

The DOD Directive Number 7050.6, dated 20 November 1989, as amended in reissued versions, dated 3 September 1992, 12 August 1995, and on 23 June 2000, cover the Military Whistleblower Protection Act provisions contained in Title 10 of the United States Code, section 1034 (10 USC 1034).
 
The foregoing directive indicates that it is DOD policy that no person shall restrict a member of the Armed Forces from lawfully communicating with a Member of Congress, an IG, or a member of a DOD audit, inspection, investigation, or law enforcement organization; that members of the Armed Forces shall be free from reprisal for making or preparing to make lawful communications to a Member of Congress, an IG, or a member of a DOD audit, inspection, investigation, or law 

enforcement organization; and that no employee or member of the Armed Forces may take or threaten to take an unfavorable personnel action, or withhold or threaten to withhold a favorable personnel action, in reprisal against any member of the Armed Forces for making or preparing a lawful communication to a Member of Congress, an IG, or a member of a DOD audit, inspection, investigation, or law enforcement organization.  No investigation is required when such allegation is submitted to the DODIG more than 60 days after a member became aware of the personnel action that is the subject of the allegation.

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 was punished under UCMJ on 26 July 1988, for wrongful use of a controlled substance prior to his release from AD on 27 July 1988.

2.  The applicant tested positive for illegal drugs from a urinalysis conducted on 8 August 1998 and sufficient evidence was found to warrant separation from the Army due to illegal drug abuse.

3.  The applicant appeared before an administrative separation board that determined that he had abused illegal drugs and was recommended for general discharge under honorable conditions.  His case was reviewed by the SJA who found the board proceedings legally sufficient.  He informed the RSC CG of his options, and the CG ordered that the applicant's separation be suspended for a period of 12 months to allow the applicant to enroll in a rehabilitation program. 

4.  The applicant's commander ordered an investigation which was conducted from 1 May to 5 June 1999 and discovered that the applicant had engaged in a pattern of misconduct after initiation of suspension action and recommended administrative separation. 

5.  The applicant completed the rehabilitation program on 20 October 1999 and was informed on 18 November 1999 that his suspension was vacated.  The RSC CG directed that the applicant be discharged with issuance of a General Discharge Certificate.  His decision was based on the applicant's misconduct for insubordination toward a noncommissioned officer and disrespect toward a superior noncommissioned officer during the period of his suspension of his discharge.  He did not consider any misconduct alleged prior to the beginning of the suspension.

6.  The evidence of record shows that the applicant's separation was based on incidents within his suspension period.  The applicant was also aware of the consequences that would affect the command's discharge decision.  There is no evidence to show that he was denied due process and the proceedings were conducted according to regulation.  

7.  The Board supports the DOD policy of unrestricted communication with Members of Congress and Inspector General offices, as well as the protection from reprisal against those who make or prepare to make such communications. However, there is no evidence to show that he exercised his rights.  An investigation was conducted which ultimately resulted in his separation.

8.  The findings of the investigation conducted were fully supported and there is no evidence to show that the investigation was based upon retaliation.  

9.  There is no evidence to show that the subsequent recommendation for separation and/or the vacation of the previously suspended action was a form of discrimination or wrongful removal and no evidence to show that his supervisor's collaboration was the main force for his removal.

10.  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.

11.  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

__fe___  __pm____  __mm___  DENY APPLICATION

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

INDEX

CASE ID	AR2002082608	
SUFFIX		
RECON		
DATE BOARDED	20031202	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19991129	
DISCHARGE AUTHORITY	AR  135-178	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.