MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 4 March 2003
         DOCKET NUMBER: AR2002079800

         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. William Blakely		Analyst

The following members, a quorum, were present:

Mr. Raymond J. Wagner		Chairperson
Mr. William D. Powers		Member
Ms. Linda M. Barker		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 her military records be corrected to show the rank of specialist four/E-4 (SP4/E-4).

APPLICANT STATES: In effect, that she was reduced in rank as a result of nonjudicial punishment (NJP) she accepted in June 1991, for a positive urine test and this resulted in her discharge from the Army. She claims that this was the only positive test she had, but that her unit commander used it as a basis to show she was not a productive soldier. She further claims that at the time she accepted NJP, Army Regulations stated that soldiers in the pay grade of E-1 through E-4 that tested positive on a urine test would not be put out of the Army. In support of her application, she submits a copy of separation document
(DD Form 214) dated 16 December 1991.

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

On 20 February 1985, she enlisted in the Army and entered active duty. She was trained and served in military occupational specialty (MOS) 75B (Personnel Administration Specialist). Her Personnel Qualification Record (DA Form 2-1) shows, in Item 18 (Appointments and Reductions), that the highest rank and pay grade she attained while serving on active duty was specialist four/E-4
(SP4/E-4), and that she was promoted to that rank on 1 December 1986. However, Item 18 also verifies that she was reduced to private/E-2 (PV2) on
21 June 1991.

The applicant’s record also shows that during her tenure on active duty, she was awarded the Good Conduct Medal (1^st Award), the Army Service Ribbon, the Overseas Service Ribbon, and the National Defense Service Medal. There are no other documented acts of valor, significant achievement, or service warranting special recognition on file in her record.

The applicant’s disciplinary history includes her acceptance of NJP on two occasions. The first on 26 September 1990, for being absent without leave and failure to obey a lawful order. The second on 21 June 1991, for the wrongful use of a controlled substance (marijuana). Her punishment for this offense included a reduction to PV2.

The DA Form 2627 on file that documents the NJP action of 21 June 1991 confirms that the applicant elected not to demand a trial by court-martial. It also shows that she requested to have the matter handled by her unit commander in a closed hearing. This document further shows that subsequent to the imposition of the NJP, the applicant appealed the action. On 16 July 1991, a legal representative found the NJP proceedings were conducted in accordance with law and regulation, and that the punishments imposed were not unjust or disproportionate to the offense committed. On 25 July 1991, the appellate authority denied the applicant’s appeal.
On 25 September 1991, the applicant was notified by her unit commander that separation action was being initiated against her for serious misconduct under the provisions of paragraph 14-12c, Army Regulation 635-200. The unit commander stated that the basis for the contemplated separation action was the applicant’s abuse of illegal drugs, as verified by a positive urinalysis given on
2 May 1991. The unit commander informed the applicant that it was his intent to recommend that her discharge be characterized as under other than honorable conditions (UOTHC).

On 27 September 1991, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, its effects, and of the rights available to her. Subsequent to receiving legal counsel, the applicant elected to voluntarily waive her right to consideration of her case by an administrative separation board contingent upon her receiving a characterization of service description of separation no less favorable than a general, under honorable conditions discharge (GD).

On 2 December 1991, the separation authority approved the applicant’s discharge under the terms of the applicant’s conditional waiver and directed that the she receive a GD. On 16 December 1991, the applicant was discharged accordingly. At the time of her discharge, she held the rank and pay grade of PV2, and she had completed a total of 6 years, 9 months, and 27 days of active military service.

Army Regulation 635-5 prescribes the separation documents which are prepared for individuals upon retirement, discharge, or release from active military service or control of the Army. It establishes standardized policy for preparing and distributing the DD Form 214. Paragraph 2-4, states in effect, that the active duty grade of rank and pay grade held at the time of separation will be entered on the separation document.

Army Regulation 635-200 sets forth the basic authority for the Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter14 establishes policy and prescribes procedures for separating member for misconduct, which includes the commission of a serious offense based on drug use. Paragraph 14-12c(2) contains the guidance for separation by reason of misconduct, commission of a serious offense, abuse of illegal drugs. It states, in pertinent part, that the first time drug offenders with 3 years or more of total military service, active and reserve, will be processed for separation upon discovery of a drug offense.

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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 Board notes the applicant’s contention that her rank should be restored to SP4/E-4. However, it finds insufficient evidence to support this claim. The evidence of record confirms that the applicant elected not to demand a trial by court-martial and that she requested that her case be heard by her unit commander in a closed hearing. Subsequent to the unit commander’s imposition of NJP, she appealed the punishment and the appeal was considered and denied by the appropriate appellate authority.

2. The Board finds that the NJP action in question was processed in accordance with applicable law and regulation, and it is satisfied that all requirements of law and regulation were met and the applicant’s rights were fully protected throughout the NJP process. Therefore, the Board finds no evidentiary basis to restore the applicant’s rank and pay grade to SP4/E-4 at this time.

3. The Board also notes that although processing a first time drug offender who holds a rank below sergeant is optional, the governing separation stipulates that all first time drug offenders with three years or more of total military service, active and reserve, will be processed for separation upon discovery of a drug offense. This, the Board concludes that the applicant’s separation processing was accomplished in accordance with applicable regulation.

4. 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.

5. 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

__RJW__ __WDP _ __LMB___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002079800
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/03/04
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	131.0900
2.
3.
4.
5.
6.