MEMORANDUM OF CONSIDERATION


         IN THE CASE OF
        


         BOARD DATE: 10 December 2002
         DOCKET NUMBER: AR2002072949

         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:

Ms. Celia L. Adolphi		Chairperson
Mr. Conrad V. Meyer		Member
Mr. Ted S. Kanamine		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)

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APPLICANT REQUESTS: In effect, that his discharge from the US Army Reserve (USAR) be voided and that he be transferred to the Retired Reserve in order to utilize his military benefits.

APPLICANT STATES: That he was diagnosed as having cancer cells and suffered from many cancer precursors. He later underwent surgery for his condition and entered the Individual Mobilization Augmentee (IMA) Program in 1997. During this period he was taking numerous medications to cure his ailments. He had surgery and returned to the Active Reserve and accepted a position as a master sergeant (MSG/E-8), because there were no openings for a sergeant major (SGM/E-9). He tested positive for THC based on his medication and requested that he be allowed to retire. The division commander denied his request and was discharged in the rank of MSG. He later discovered that his status was revoked and he is now unable to utilize his military benefits. In support of his application, he submits copies of his separation orders, 20-Year Letter, and several documents pertaining to his request.

EVIDENCE OF RECORD: The applicant's military records show he enlisted in the USAR on 18 March 1971. He continued to serve in the USAR through a series of continuous reenlistments.

On 22 March 1993, the Army Reserve Personnel Center (ARPERCEN) notified the applicant that he had completed the required years of service to be eligible for retired pay upon applicant’s age at 60 (20-Year Letter).

He was promoted to SGM/E-9 effective 1 June 1995. Effective 17 November 1997 he was disenrolled from the Sergeants Major Course for failure to complete minimum course requirements.

The applicant’s records contain a copy of a DD Form 2624 (Specimen Custody Document-Drug Testing), dated 14 September 2000, which shows
that a urine specimen was obtained from the applicant on 20 August 2000, which tested positive for tetrahydrocannabinol (THC).

The applicant’s records contain a copy of DA Form 4856 (General Counseling Form), dated 22 October 2000, which shows that the commander counseled the applicant in reference to his positive test results. The commander advised the applicant that this counseling was imposed as an administrative measure and was not to be constructed as punishment. He also advised the applicant to seek evaluation, treatment, and rehabilitation.

On 9 December 2000, the applicant's commander recommended that he be separated from the USAR under Army Regulation 135-178, paragraph 7-11c1, unsatisfactory performance. He also stated that the applicant had been a valuable asset to his command, supported his chain of command, and had been a respected and valuable leader to the enlisted soldiers. He further stated that knowing that he was advanced in the enlisted ranks to SGM forced him to believe that his military record was impeccable. He received his 20-Year Letter, and with that in mind, recommended that he be transferred immediately to the Retired Reserve.

The brigade commander nonconcurred with the unit commander's recommendation to assign the applicant to the Retired Reserve. He also stated that regulations prohibited the reassignment of the applicant to the Retired Reserve until disposition of his misconduct case was resolved. The applicant would remain eligible for retirement benefits; however, he must apply for them when he reached age 59 ½. It was not feasible or appropriate to effect any disposition but separation from the USAR.

After consulting with counsel on 3 March 2001, the applicant submitted a request for a conditional waiver in which he agreed to waive consideration of his case by a board of officers contingent upon receiving a transfer to the Retired Reserve.

He also elected to submit a statement in his own behalf in which he contended that his rights were put aside in order to reach a guilty verdict. He believed that there were many reasons for an individual to test positive for THC without coming into contact with the drug. He stated that to sentence him without due process was unfair and illegal.

After consulting with counsel on 15 March 2001, the applicant submitted a second request for a conditional waiver in which he agreed to waive consideration of his case by a board of officers contingent on his receiving a characterization of service or description of separation no less favorable than under honorable conditions (general discharge).

The separation authority, a major general, approved the applicant's second request for a conditional waiver in which he agreed to waive consideration of his case by a board of officers contingent on his receiving an under honorable conditions (general discharge).

The applicant’s records contain a copy of Headquarters, 91^st Division
(Training Support) Orders 01-109-002, dated 19 April 2001, which shows that the applicant received a general discharge with an effective date of 15 March 2001,
in the rank of MSG.

The applicant’s records contain a copy of his Chronological Statement of Retirement Points which shows that he had completed 27 years of qualifying service for retirement purposes.

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 140-10 sets forth the basic authority for the assignment, attachment, detail, and transfer of USAR soldiers. Chapter 7 of the regulation relates to the removal of soldiers from an active status and states, in pertinent part, that soldiers removed from an active status will be discharged or, if qualified and if they so request, will be transferred to the Retired Reserve.

Army Regulation 135-180 states in paragraph 2-3, that a 20-Year Letter will be issued to the Reserve Component soldier within 1 year after they complete 20 years of qualifying service for retirement. This letter will be issued by the Chief, National Guard Bureau for ARNG soldiers, and the Commander, Army Reserve Personnel Command (AR-PERSCOM) for USAR soldiers. The letter, once issued, may not be withdrawn or revoked.

The same regulation provides policy for the granting of retired pay to soldiers and former Reserve Component soldiers. It states, in pertinent part, that pay is granted after completion of 20 or more years of qualifying service and upon attainment of age 60. It states that each qualified individual is responsible to submit an application for retired pay (DD Form 108) 6 months prior to age 60 and that those without a current military status may obtain the form from a local Reserve Component unit or by writing AR-PERSCOM.

On 29 October 1999, the Under Secretary of Defense established policy as pertains to former Reserve members entitlements. Members of the Reserve Components who are eligible to receive retired pay at age 60, but have been discharged, are entitled to an identification card and other such privileges. A copy of this memo will be provided to the applicant.

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. It is noted that he committed the misconduct on 20 August 2000
which was after he completed 20 years.

2. The applicant's commander recommended that he be transferred to the Retired Reserve based on his 20-Year Letter. However, his brigade commander nonconcurred with this recommendation and stated that regulations prohibited the reassignment until disposition was resolved. The brigade commander also stated that the applicant would remain eligible for retirement benefits and must apply when he reaches age 59 ½.

3. It is apparent that, while the applicant may have met basic eligibility for transfer to the Retired Reserve as indicated by the issuance of a 20-Year Letter,
the Commanding General, 91^st Division (Training Support) directed that the applicant be discharged from the USAR based on his misconduct. The applicant was discharged on 15 March 2001.

4. Based on the guidance from the Under Secretary of Defense, the applicant is entitled to receive certain benefits which accrue to USAR soldiers with evidence of 20 or more years of qualifying service.

5. 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.

6. 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

__ca___ ___cm___ ___tk___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002072949
SUFFIX
RECON
DATE BOARDED	20021210
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	20010419
DISCHARGE AUTHORITY	AR 140-10
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	192
2.
3.
4.
5.
6.