RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          2 December 2004
      DOCKET NUMBER:  AR2004100770


      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. Rosa M. Chandler              |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Raymond J. Wagner             |     |Chairperson          |
|     |Mr. Thomas E. O'Shaughnessy, Jr.  |     |Member               |
|     |Ms. Laverne V. 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, in effect, reconsideration of his of earlier
request to correct his record to show he was retired due to a physical
disability with pay and benefits, in lieu of being discharged with a
general discharge (GD) for misconduct.

2.  The applicant states, in effect, that his discharge should be upgraded
pursuant to the 27 November 1979 order of the U.S. District Court for the
District of Columbia in "Giles v. Secretary of the Army."  The court order
states that a service member is entitled to an Honorable Discharge (HD) if
less than an HD was issued in an administrative proceeding in which the
Army introduced evidence developed as a direct or indirect result of
compelled urinalysis testing for the purpose of identifying drug abusers.

3.  The applicant states, in effect, that his chain of command discovered
his drug usage by urinalysis testing and illegally introduced the
information in his administrative separation process.  He then received a
less than honorable discharge.

4.  The applicant provides in support of his request:

      a.  Two pages from Army Regulation 15-185 (Boards, Commissions, and
Committees-Army Board for Correction of Military Records (ABCMR)), Change
1.


      b.  Three pages of his separation processing action.


      c.  A copy of his DD Form 214 (Certificate of Release or Discharge
from Active Duty).


      d.  An ABCMR Memorandum of Consideration dated 31 March 1999.


CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
Army Board for Correction of Military Records (ABCMR) in Docket Number AC98-
06002/ AR1998014164 on 31 March 1999.

2.  The applicant’s military records show that he enlisted in the Regular
Army on 27 July 1994 for a period of 3 years.  He was awarded military
occupational specialty (MOS) 11B, Infantryman.  On 10 January 1995, he was
assigned to Fort Drum, New York with duties in his MOS.

3.  On 5 April 1995, nonjudicial punishment (NJP) under the provisions of
Article 15, Uniform Code of Military Justice, was imposed against the
applicant for wrongful use of cocaine between 9 January 1995 and 9 February
1995.  His punishment included a forfeiture of $427.00 pay per month for
1 month and
45 days of extra duty and restriction.

4.  On 9 May 1996, NJP under the provisions of Article 15, UCMJ, was
imposed against the applicant for being drunk while on duty on or about 25
April 1996.  His punishment is not a matter of record.

5.  On 7 January 1997, the applicant was administered an Administrative
Reprimand for driving a vehicle while under the influence of alcohol on
17 December 1996.

6.  On 25 February 1997, NJP under the provisions of Article 15, UCMJ, was
imposed against the applicant for being disrespectful in language and
deportment towards a noncommissioned officer on 29 December 1996.  His
punishment included reduction from pay grade E-2 to pay grade E-1; a
forfeiture of $210.00 pay for 1 month (suspended until August 1997) and 14
days of extra duty and restriction.

7.  On 6 March 1997, the applicant was officially notified that he was
being recommended for discharge under the provisions of chapter 14, Army
Regulation
635-200, for commission of a serious offense.  The commander cited as the
bases for the separation action the applicant's use of cocaine and being
drunk on duty.  On the same date, the applicant consulted with a legal
representative and acknowledged that he understood the ramifications
associated with a GD.  He was not entitled to have his case heard by an
administrative separation board.  The available record does not contain a
statement submitted by the applicant in his own behalf.

8.  On 25 April 1997, a Medical Evaluation Board (MEB) determined the
applicant was medically unfit for retention in the Army and recommended
that his case be referred to a Physical Evaluation Board (PEB), due to
having bilateral retropatellar pain syndrome and avascular necrosis of
right femoral head.  The applicant concurred with the MEB's findings and
recommendation.

9.  On an unknown date, the applicant's unit commander recommended
separation under the provisions of chapter 14, Army Regulation 635-200, for
commission of a serious offense with a GD.  On 15 May 1997, the
intermediate commander recommended approval with a GD.

10.  On 29 May 1997, the approval authority determined the applicant's
disability was not the substantiating contributing cause of his misconduct
that formed the basis for the proposed separation.  The approval authority
also found no circumstances that warranted disability processing and
approved the applicant's separation in accordance with chapter 14, Army
Regulation 635-200, for commission of a serious offense with a GD.

11.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 14 establishes policy and
prescribes procedures for separating members for misconduct.  Specific
categories include minor disciplinary infractions, a pattern of misconduct,
commission of a serious offense, convictions by civil authorities,
desertion or absence without leave.  A GD or an under other than honorable
conditions discharge is authorized.

12.  Army Regulation 15-185, governs the operations of the Board.
Paragraph
4-1 states that pursuant to the 27 November 1979 order of the U.S. District
Court for the District of Columbia in "Giles v. Secretary of the Army," a
former Army service member is entitled to an HD if less than an HD was
issued in an administrative proceeding in which the Army introduced
evidence developed as a direct or indirect result of compelled urinalysis
testing for the purpose of identifying drug abusers (either for the
purposes of entry into a treatment program or to monitor progress through
rehabilitation or follow-up).

13.  In accordance with chapter 6, Army Regulation 600-85, the limited use
policy prohibits the use of the following evidence against a soldier in the
issuance of the characterization of service in the separation process:
Mandatory urine or alcohol breath test results, Alcohol and Drug Abuse
Prevention and Control Program (ADAPCP) monitoring tests, a soldier’s self-
referral to ADAPCP and or voluntary admissions made as part of the
enrollment process.  Use of limited use information during the separation
process mandates an HD.

DISCUSSION AND CONCLUSIONS:

1.  The evidence available shows no evidence of arbitrary or capricious
actions by the applicant's chain of command.  The applicant's
administrative separation was accomplished in compliance with applicable
regulations with no indication of procedural errors, which would have
jeopardized his rights.  Both the reason for separation and the
characterization are appropriate considering the facts of the case.

2.   The applicant violated the Army's policy not to possess or use illegal
drugs and or abuse alcohol.  Therefore he engaged in behavior that was not
in keeping with good military conduct.   He knowingly risked his military
career and diminished the quality of his service below that meriting an
honorable discharge.

3.  The applicant has established no basis for separation due to physical
disability with pay and benefits.  The separation approval authority had
the power to let him to continue processing through the DES or approve
administrative separation.

4.  Additionally, "Giles v. Secretary of the Army" does not apply to the
applicant because there is no evidence that his chain of command illegally
introduced information into the administrative separation process that was
developed as a direct or indirect result of a compelled urinalysis test
either for the purposes of entry into a treatment program or to monitor his
progress through rehabilitation or follow-up.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__rjw___  __teo___  __lvb___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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 to amend the decision of
the ABCMR set forth in Docket Number AC98-06002/AR1998014164, dated 31
March 1999.



                                  Raymond J. Wagner
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100770                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041202                                |
|TYPE OF DISCHARGE       |(GD)                                    |
|DATE OF DISCHARGE       |19970609                                |
|DISCHARGE AUTHORITY     |AR635-200, Chap 14                      |
|DISCHARGE REASON        |A60.00                                  |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.6000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |

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