RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         6 OCTOBER 2005
      DOCKET NUMBER:  AR20040010728


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Gale J. Thomas                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Curtis Greenway               |     |Chairperson          |
|     |Mr. Richard Dunbar                |     |Member               |
|     |Ms. LaVerne Berry                 |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that he be reinstated to his full rank, to
include all promotions and back pay to include all annual training periods,
drills, active duty periods and benefits.  He requests punitive damages
because the Utah Army National Guard and its members willfully,
deliberately and maliciously disregarded his rights.  He also requests
attorney’s fees, court cost, service fees, and any other cost associated
with this matter.

2.  The applicant states that he should not have been discharged, that
members of his command illegally performed actions which they had no
authority to do, which resulted in numerous substantial violations of his
rights.

3.  The applicant provides a chronological list of events leading to his
separation action, copies of formal complaints against members of the Utah
Army National Guard, copy of discharge order, a request for reconsideration
and setting aside board findings and recommendation, and claims for damages
against the Utah National Guard, as well as other documents relating to his
separation action.

CONSIDERATION OF EVIDENCE:

1.  The applicant initially enlisted in the Army National Guard on 12 May
1980.  He served in the United States Marine Corps from January 1989 to
January 1991.  He enlisted in the Army National Guard on 25 June 1992 and
reenlisted on 25 August 1995.

2.  The applicant’s records show he was discharged from the Army National
Guard on 10 February 1997, under the provisions of National Guard
Regulation 600-200, paragraph 8-27g, for being an unsatisfactory
participant.

3.  There are no documents in the applicant’s records after his 1997
discharge.

4.  Documents submitted by the applicant indicate that he again became a
member of the Army National Guard sometime prior to November 2000.

5.  On 19 November 2000 the applicant tested positive during a random drug
urinalysis test.

6.  On 7 December 2000, the applicant was notified that action was being
initiated to separate him for the Utah Army National Guard and as a Reserve
of the Army for acts of misconduct.  The reason for the proposed action was
the applicant’s abuse of illegal drugs.  The applicant was advised of his
rights.
7.  On 12 December 2000, the applicant was counseled and notified of the
test results with the Rights Warning Procedure/Waiver Certificate
completed.  He was told that a suspension of favorable personnel actions
would be completed by the Command authority, he would be denied access to
weapons and controlled medicines, suspended from having access to
classified security information, and would be removed from any position
that involved the safety of troops.   The counseling form noted that
Captain C would write a memorandum requesting that an administrative board
be held to determine the applicant’s disposition.

8.  It appears that the applicant was discharged on 22 January 2001,
without having appeared before an administrative board.  However, after the
applicant obtained civilian counsel, he informed the applicant’s command
that the applicant had been discharged without a hearing.  As such, on 5
February 2001, the applicant's discharge was revoked.

9.  On 19 August 2001, an Administrative Separation Board determined that
through evidence it appeared that the applicant did use illegal drugs, that
he had no potential for further useful military service and recommended
that he be separated for misconduct, abuse of illegal drugs.  The board
further recommended that the applicant be separated under honorable
conditions characterization with a general discharge.

10.  On 31 October 2001, the appropriate separation authority approved the
board’s recommendation.

11.  On 30 November 2001, the applicant was dischargedn under the
provisions of National Guard Regulation 600-200 paragraph 8-26a, with a
general discharge.

12.  On 5 December 2001, the applicant requested that The Adjutant General
set aside the board findings and recommendations.  However on 19 December
2001, after a personal inquiry, The Adjutant General let stand the approval
of the findings and recommendation of the Administrative Separation Board.


13.  Between February 2002 and April 2002, the applicant made formal
complaints to the State of Utah, Utah National Guard, and against his chain
of command concerning his discharge proceedings.  The State Judge Advocate
responded to the applicant’s complaints on behalf of The Adjutant General,
informing him that there was no authority in statute or regulation under
which he could bring charges against a commissioned officer of the Utah
National Guard.



14.  Army Regulation 15-185 provides in pertinent part, that the Army may
not pay attorney’s fees or other expenses incurred by or on behalf of an
applicant in connection with an application for correction of military
records under 10 U.S.C. 1552.

DISCUSSION AND CONCLUSIONS:

1.  While the applicant contends that his rights were violated by the Utah
Army National Guard he has provided no evidence to support that contention.
 When it was discovered that he had been discharged without appearing
before an administrative separation board, the error was rectified by
revoking his discharge and permitting him to have his case reviewed by the
appropriate board.

2.  There is no evidence of any error or injustice in the final disposition
of the applicant by the Nation Guard or evidence which would warrant
reinstating him in the Army National Guard with associated benefits.

3.  There are no provisions, nor any basis which would justify the Board
awarding punitive damages, attorney’s fees, court cost or any other fees or
expenses incurred by or on behalf of the applicant as part of his discharge
or subsequent application for relief from this Board.

4.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.  The applicant has provided no evidence that that
would justify granting any of the relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

____CG _  __RD ___  __LB   __  DENY APPLICATION





BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented does not demonstrate the
existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.




                                  _____Curtis Greenway______
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040010728                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051006                                |
|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.       |131.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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